CA Unpub Decisions

Appellant Ursula Hubner appeals from an order dismissing her petition to vacate an arbitration award based on Hubners untimely service of the petition. Court affirm.

In this action for damages and an accounting, plaintiff and appellant Samuel J. Kleinman appeals from a judgment following a court trial in favor of defendants and respondents Pnina Nir and Joseph Barth. Kleinman contends the trial court committed prejudicial error by excluding documentary evidence and expert testimony, and precluding Kleinman from presenting expert testimony in rebuttal. Court conclude Kleinman has failed to show prejudicial error and affirm the judgment.

A jury convicted defendant and appellant Delio Xatruch (defendant) of one count of false imprisonment (Pen. Code, 236, subd. (a)[1]), one count of dissuading a witness by force or threat ( 136.1, subd. (c)(1)), one count of kidnapping to commit another crime ( 209, subd. (b)(1)), two counts of first degree residential burglary ( 459), and two counts first degree robbery ( 211). The jury found true the allegations that defendant personally used a firearm in the commission of the kidnapping and the robberies within the meaning of section 12022.53, subdivision (b). As to the robberies, the jury also found true the allegation that defendant acted in concert and entered a structure as described in section 213, subdivision (a)(1)(A). The jury also found the allegation that defendant personally used a firearm in the commission of first degree burglary within the meaning of section 12022.5, subdivision (a)[2]to be true as to one count and not true as to the other count. The trial court struck the section 12022.53, subdivision (b) sentence enhancements as to the two robbery convictions; imposed a $200 restitution fine ( 1202.4, subd. (b)), a suspended $200 parole revocation restitution fine ( 1202.45), a $20 court security fee ( 1465.8, subd. (a)(1)), a $20 DNA penalty assessment (Gov. Code, 76104.7), and a $10 crime prevention fine ( 1202.5, subd. (a)); and sentenced defendant to state prison for life with the possibility of parole plus 17 years, four months. The judgment of conviction is affirmed.

The jury found defendant Juan Tejeda guilty of the second degree murder of Gladys Quinones in violation of Penal Code section 187, subdivision (a),[1]with the jury specially finding defendant personally used a deadly weapon, a putty knife ( 12022, subd. (b)(1)), to kill her. The trial court imposed a sentence of 15 years to life for the murder plus an additional year for the weapon enhancement. In his timely appeal, defendant contends the trial court prejudicially erred in applying Evidence Code sections 1109 and 1101, and violated his constitutional right to due process by admitting evidence of defendants prior act of domestic abuse against the victim. He also contends the application of Evidence Code section 1109, which permits the admission of other acts of domestic violence under specified conditions, violated his federal due process rights. Finally, defendant contends the trial court improperly instructed the jury concerning the manner in which to consider the prior act of domestic violence.

Francisco J. Escobar appeals from his convictions of assault on a peace officer and assault with force likely to produce great bodily injury. He argues the court erroneously denied his Pitchess[1]motion requesting that the court review the personnel files of the officers involved in his arrest. Court conclude that denial of this motion was appropriate because appellant failed to articulate a specific factual scenario involving officer misconduct and failed to link the scenario to a proposed defense. Appellant also argues that he is entitled to a new trial due to prosecutorial misconduct. This is based on the prosecutor allowing the jury to see an unflattering photo of appellant. We find no reversible error and affirm the conviction.

Y.L. appeals from orders terminating her parental rights to her children T.L., P.L. and D.L. As to T.L. and P.L., she argues substantial evidence does not support the juvenile courts findings that the exceptions to adoption provided in Welfare and Institutions Code[1] section 366.26, former subdivisions (c)(1)(A) and (c)(1)(D) are inapplicable. As to D.L., she argues substantial evidence does not support the orders sustaining the petition and denying reunification services. Court conclude substantial evidence supports each of the challenged orders, and affirm.

The trial court, after a bench trial, awarded plaintiff and appellant Hana Micron, Inc. (plaintiff) only $89,343.80 in damagesrather the $227,425.68 or $469,927.88 plaintiff soughton its breach of contract claim against defendants New Age International, LLC (New Age) and Michael Lee (collectively, defendants).[1] Plaintiff contends on appeal, in essence, that no substantial evidence supported the trial courts damage calculation. Court conclude that plaintiff forfeited its right to substantial evidence review by failing to set forth in its brief material evidence tending to support the damage award. The record contains substantial evidence to support the damage award. Court therefore affirm.

Los Angeles zoning regulations prohibit the establishment of an adult entertainment business within 500 feet of a public park under the control, operation, or management of the City Board of Recreation and Parks Commissioners. (L.A. Mun. Code, 12.70 [hereafter section 12.70].) The question presented in this case is whether an undeveloped parcel of land in a master planned community is a public park under those zoning regulations when (1) the land is not owned by the City, but (2) Tract Map Conditions for approval of the development require that the parcel be used as a park, that all improvements be approved by the City in consultation with the Department of Recreation and Parks, and that the park be maintained in a manner satisfactory to the City. The Zoning Administrator issued a Zoning Administrator Interpretation finding that the parcel was a public park, the West Los Angeles Planning Commission determined it was a public park, and the trial court affirmed that determination. Court affirm the judgment.

The juvenile court found that appellant Byron B. was a person described in Welfare and Institutions Code section 602, based upon a sustained finding that Byron committed a second degree robbery in violation of Penal Code section 211. Byron was declared a ward of the court and ordered home on probation with specified probationary conditions. In his timely appeal, Byron challenges selected probation conditions and further argues that the minute order from the disposition hearing is inconsistent with the oral pronouncement of judgment. Court affirm the wardship order, but modify the judgment and order the minute order corrected.

Appellant admits he was advised of, and did not object to, the gang registration requirement when he was sentenced immediately following his nolo contendere plea. Nonetheless, he claims the trial court erred in denying his motion to withdraw his plea because he was not so advised before entry of his plea. For the reasons set forth below, Court find appellants claim is procedurally barred. Court also note in passing that the claim lacks merit.

Tomson T. (father) appeals from the order terminating reunification services concerning his son Christian T. at a six-month review hearing under Welfare and Institutions Code section 366.21, subdivision (e). He contends the dependency court lacked jurisdiction to terminate reunification services for him because it continued services for Christians mother. Fathers contention is mistaken, as the dependency court has discretion under section 366.21, subdivision (e) to terminate services for one parent while continuing services for the other parent. Accordingly, Court affirm the order.

In September 2006, respondent Department of Children and Family Services detained almost three-year-old S. and one-year-old Si. when their two-month-old brother, Sean, was rushed to the hospital not breathing and without a pulse after he had lodged himself between the mattress and headboard of his mothers bed. Two days later, doctors declared Sean brain dead and removed him from life support. Following Seans death, the department filed a petition under Welfare and Institutions Code section 300 alleging mother Shaunas neglect of Sean leading to his death put S. and Si. at risk of harm. The petition further alleged mother had a history of substance abuse, including methamphetamine use that rendered her incapable of caring for the girls. And finally, the petition alleged that appellant Mark B., the girls alleged father he was not named on their birth certificates and had not supported them financially nor helped in their upbringing had a history of criminal convictions that created a risk of harm to the girls from his failure to protect them.

This case is a family dispute involving the assets of famed test pilot Chuck Yeager. Those assets were held in a revocable living trust of which Yeager and his daughter Susan were cotrustees. Some of the assets had been transferred to a family corporation, Yeager, Inc.; Yeager and his four children were the shareholders. The dispute began when the widowed Yeager met Victoria DAngelo and decided that she, rather than his children and grandchildren, should be the beneficiary of his largesse.
We modify the judgment and affirm. We find substantial evidence supports the conclusion that Susan breached her duty as trustee in the sale of the Pleasant Valley property and must forfeit her profit. The calculation of that profit, however, is incorrect; the award of damages is reduced, but bears prejudgment interest. Court find no merit in the remaining contentions.

Defendant Daniel Evan Nelson pleaded no contest to committing a lewd or lascivious act on a child (Pen. Code, 288, subd. (a)).[1] On appeal, he contends the trial court imposed the upper term based on facts not submitted to a jury in violation of his Sixth and Fourteenth Amendment rights (Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham)). Court affirm the judgment.