CA Unpub Decisions

This is a coverage action by a developer who tendered defense of an action to its insurer and was turned down, and a fraud case against the developers insurance broker who said the developer had coverage the insurer later denied.
The developer and related parties are Cherokee Partners, LLC, Pacific Street Five, LLC, H. Daniel Lively, Stephen Kemp, Builders Financial Services, Developer Financial Services Corporation, and HJC Capital Corporation (collectively, Cherokee, unless otherwise indicated). Clarendon National Insurance Company (Clarendon) is the insurer. Robert E. Harris Insurance Agency, Inc. (Harris) is the insurance broker. Court conclude Clarendon was entitled to summary judgment, although not for the reason given by the trial court, and affirm the judgment as to Clarendon. The same is not true for Harris, as to whom we reverse the judgment. Court agree with

Brenda Martin is the successor trustee of her mothers revocable living trust. Her mother, Rosalie Givens, is still living and is housed in a residential care facility. Dennis Givens, who is Brendas brother and Rosalies son, filed a petition together with his wife, Betty Givens, asking the probate court to instruct Brenda to sell them Rosalies home, which is the sole asset of the trust. The court granted the petition, and Brenda appeals.

Manuel Salas appeals from a judgment after a jury convicted him of first degree murder and attempted murder, and found true firearm allegations. Salas argues: (1) there was insufficient evidence of deliberation and premeditation; (2) there were instructional errors; and (3) the prosecutor committed prejudicial misconduct, or alternatively, he received ineffective assistance of counsel. None of his contentions have merit, and Court affirm the judgment.

In 1994, defendant Cau An Tran was charged with residential burglary, was found to be not guilty by reason of insanity and was ordered committed. Thereafter, the court extended defendants commitment 15 times until March 25, 2007. On April 10, 2007, the district attorney filed a petition to extend defendants commitment. The court denied defendants motion to dismiss the petition as untimely and concluded that good cause had been established to extend the time for filing the petition. After a hearing, the court extended defendants commitment to March 25, 2009. In his appeal defendant contends the court lacked jurisdiction to extend the commitment. In the alternative, he argues that, even if the court had jurisdiction, it erred in finding good cause for the late filing of the petition. Court disagree and affirm the judgment

Plaintiff Omar Deen appeals the judgment entered in favor of defendant Barbara M. Fisler, Trustee of the Barbara M. Fisler Revocable Trust and order denying him a new trial based on newly discovered evidence. He argues his new trial motion should have been granted because the new evidence he presented showed defendant lied at trial. Plaintiff also appeals from the order awarding defendant her attorney fees, contending the fees were improperly awarded under fee provisions in two documents he never sought to enforce and that, alternatively, the award should have been limited to those fees incurred by defendant in obtaining rescission of those documents. Court find no error and affirm.

A jury convicted defendant Patrick Daniel Piceno of forcible rape (count 1) and elder abuse likely to produce great bodily harm (count 2). It also found true the allegations that defendant had personally inflicted great bodily injury during the rape, had committed the rape against a vulnerable person, and had inflicted great bodily injury on an elder victim. The court sentenced defendant to prison for 15 years to life on count 1 and a consecutive determinate term of eight years on count 2 for a total prison term of 23 years to life. Defendant appeals, contending the sentence on count 2 should have been stayed under Penal Code section 654 (section 654). Court disagree and affirm.

A jury convicted defendant Fernando Reyes Rodriguez of first degree residential burglary and found true the allegation a non-accomplice was in the residence during the burglary. Subsequently, the trial court found defendant had two prior strikes (Pen.Code, 667, subds. (b)-(i)), 1170.12; all statutory references are to this code), two prior felony convictions ( 667, subd. (a)), and three prior prison terms ( 667.5, subd.(a)). Defendant received a sentence of 35 years to life in prison. He appeals, contending CALCRIM No. 220, defining reasonable doubt, deprived him of due process. Court disagree and affirm.

John C. (father) appeals from a judgment terminating his parental rights and freeing his daughter, Allison C. (now seven years old) from his custody and control due to abandonment under Family Code section 7822.[1] Dario A. (stepfather) filed the section 7822 petition as a precursor to adopting Allison without fathers consent. Father contends (1) insufficient evidence supports the courts finding he abandoned Allison, and (2) the court misapplied the law in reaching this determination. Court disagree and affirm the judgment.

Defendants Alpine-Riviera, L.L.C., Alpine-McIntyre, L.L.C., Destiny-Phoenix West, L.L.C., and Destiny-Dallas, L.L.C. (collectively seller) agreed to sell defendant H. Wayne Klekamp, Inc. (buyer) four recreational vehicle (RV) parks. The parties opened an escrow with plaintiff Chicago Title Company and buyer deposited $100,000. When the parties failed to complete the transaction, both seller and buyer asserted a right to the deposit. Plaintiff filed this interpleader action and deposited the $100,000 with the superior court. After trial, the court awarded the deposit to buyer. Applying New York law, as required by the contracts choice-of-law clause, the court found seller committed a material breach of the agreement by failing to inform buyer of pending governmental enforcement action against one RV park concerning its noncompliance with water quality standards, which seller failed to cure before the closing date. In addition, the court ruled buyer was not required to provide seller either with proof it had obtained adequate funding for the purchase or that it was otherwise ready, willing, and able to complete the contract to recover its deposit. Seller appeals. Court affirm the judgment.

B.H. appeals from the courts order continuing his wardship under Welfare and Institutions Code section 602. B. contends insufficient evidence supports the courts finding he committed misdemeanor petty theft of lost property in violation of Penal Code section 485 (appropriation of lost property with knowledge or means of inquiry as to true owner). Court affirm.

Robert Lee Gallardo was convicted of second degree robbery after a trial conducted by his retained attorney even though he requested a new attorney on the first day of trial. Under Justice Bedsworths opinion for another panel of this court in People v. Munoz (2006) 138 Cal.App.4th 860, as well as the Second Districts opinion in People v. Hernandez (2006) 139 Cal.App.4th 101, reversal is required. The Attorney Generals office makes no attempt to distinguish either case. Indeed, it does not mention either case at all in its respondents brief, even though both feature prominently in the appellants opening brief. The judgment is reversed.

Casey I. (minor) appeals from the judgment of the juvenile court after admitting allegations that he committed lewd and lascivious acts with a child under the age of 14 in violation of Penal Code section 288, subdivision (a)[1]on counts one through five and continuous sexual abuse in violation of section 288.5, subdivision (a) on count six. Section 288.5, subdivision (c) prevents an accused from being charged in the same proceeding with continuous sexual abuse and the acts underlying that charge. Minor argues that he was incorrectly charged and adjudicated under section 288.5, subdivision (c). The Attorney General concedes the point. Minor also argues that the juvenile court abused its discretion in committing him to the Department of Juvenile Justice instead of a less restrictive placement. Court reverse and remand regarding the first issue and affirm minors commitment to the Department of Juvenile Justice.

This appeal arises from a judgment in a proceeding under section 602 of the Welfare and Institutions Code. (Welf. & Inst. Code, 800, subd. (a).) In count one it is alleged Richard F., a minor, committed misdemeanor vandalism. In count two it is alleged he was in possession of a weapon of the kind commonly known as a hammer, in violation of Penal Code section 12020, subdivision (a)(1). Count two, at the deputy district attorneys request, was later amended to add after the word hammer and or billy.
Minor does not contest the true finding as to count one. Accordingly, count one is affirmed but the true finding as to count two is reversed.

Hunter F. and his two-year-old brother, Andrew F., were detained by the Orange County Social Services Agency (SSA) in August 2005, when Hunter tested positive for amphetamines and methamphetamines at birth. The mother, Kristi F., told the court she had Cherokee and Sioux heritage at the detention hearing. The court deferred findings under the Indian Child Welfare Act (25 U.S.C. 1901 et seq.[ICWA]) and ordered SSA to investigate the mothers Indian heritage and provide notice to the appropriate tribes. The maternal grandmother, Janelle F., had been caring for Andrew when Hunter was born; she was also present at the detention hearing, and the court ordered SSA to assess her for placement of the children.