CA Unpub Decisions

In this business dispute over the purported sale of a travel business, the trial court, on ex parte application, appointed a discovery referee pursuant to Code of Civil Procedure section 639, subdivision (a)(5) to supervise petitioners deposition because of the obstreperousness of petitioners counsel. It also ordered petitioner to pay all associated fees and costs. The court was wrong to grant such relief, warranted or not, on ex parte application.

Appellant Shavon L. Butler and respondent Maurice A. Bemore are the parents of a minor child. During an exchange of the child at the home of Gwen Watkins, Bemores mother, Butler tried to attack Watkins and threatened to kill her. Bemore physically restrained Butler, and she scratched him. Bemore obtained a domestic violence protective order, and Watkins obtained a civil harassment restraining order. Butler challenges these orders on appeal. She claims that these orders are infirm because her trial counsel was prejudicially ineffective. Butler also contends that the orders are not supported by substantial evidence. Court reject her contentions and affirm the orders.

In this appeal Thomas Burns, trustee of a family trust, and the Los Altos Golf and Country Club (LAGCC) seek review of an order sustaining the demurrer of the City of Los Altos (City) and County of Santa Clara (County) in appellants' action to recover fees paid for sewer service provided by the City. Appellants assert error in the trial court's determination that payment "under protest" was necessary before pursuing a claim for refund of fees asserted to be invalid. Court find no error and affirm the judgment of dismissal.

Orlando V. appeals from the juvenile courts order denying his motion for a paternity test. He argues that the court erred and therefore this court must direct the juvenile court to order a paternity test for him. He also argues that if a paternity test shows that he is the biological father of M.P. he is entitled to have the courts order terminating his parental rights under Welfare and Institutions Code section 366.26 set aside and to be provided with reunification services.Because Orlando V. failed to file a timely notice of appeal from the juvenile courts order denying the paternity test, appellate jurisdiction is lacking and Court must dismiss the appeal.

In an action arising from a county construction project, defendant G.W. Davis, Inc. (Davis) moved for sanctions under Code of Civil Procedure section 128.7 against plaintiff Star Building Systems (Star) for filing a meritless claim against Davis. The court denied the motion and directed Davis to pay the attorney fees Star had incurred in opposing the motion. Davis appeals, contending that this was an unauthorized sanction. Court disagree and affirm the order.

Antoinette M. and Joseph S. are the parents of Evelyn M., a three-year-old girl. Both appeal from the juvenile courts order under Welfare and Institutions Code section 366.26[1]ending their parental rights. They claim that the juvenile court misunderstood the statutory scheme for setting a permanent plan under section 366.26. They also claim that the beneficial relationship and sibling relationship exceptions apply against the courts order ending their parental rights. And they claim that the court should not have taken into account the possibility of postadoption family contacts in ending their parental rights. The juvenile courts orders are affirmed.

David S., is the father of Natalie C. He appeals from an order denying his petition for modification pursuant to Welfare and Institutions Code section 388.[1] He contends: (1) the Santa Clara County Department of Family and Childrens Services (Department) failed to comply with the Indian Child Welfare Act (ICWA); and (2) the juvenile court abused its discretion in denying his petition for modification. Court find no error and affirm.

Defendant David Martinez Rivera pleaded guilty in July 2007 to one count of unauthorized use of tear gas (Pen. Code, 12403.7, subd. (g)),[1] and two counts of assault with a deadly weapon ( 245, subd. (a)(1)). Defendant was sentenced to two years in state prison on each count, with each sentence to be served concurrently. Defendant filed a timely appeal. Court affirm the judgment.

Marcus Castaneda (Castaneda) appeals from a judgment of conviction and sentence imposed after he pled no contest to receiving a stolen automobile and possessing methamphetamine. (Pen. Code, 496d, subd. (a); Health & Saf. Code, 11377, subd. (a).) He challenges the denial of his pre-plea motion to suppress evidence. (See Pen. Code, 1538.5, subd. (m).) Court affirm the judgment.

After a court trial, cross-defendants White Consolidated Industries, Inc., and Electrolux Home Products, Inc., doing business as Frigidaire Home Products (collectively Frigidaire or respondents), recovered a favorable judgment on a cross-complaint for express indemnity, brought by appellant Adir Export International, Ltd. (Adir or La Curacao),[1]in a tort action in which all three parties were defendants and had settled with the plaintiffs. Adir appeals, together with its insurers, Atlantic Mutual Insurance Company and General Security Insurance Company, which had sued Frigidaire and its insurer in a consolidated action for subrogation and other causes of action. Appellants contend that the trial courts findings are not supported by substantial evidence, and that the court erroneously refused to admit into evidence an insurance policy from respondents insurer. Respondents request sanctions for a frivolous appeal.
Court affirm the judgment, on Adirs appeal. Court dismiss the appeal with respect to Adirs insurers, because the record does not reflect a final judgment as to them, resolving all causes of action in their complaint. Court deny respondents request for sanctions.

Plaintiffs, cross-defendants and appellants Sarkis Gumrikyan, Sedrak Gumrikyan and Stepan Gumrikyan (the Gumrikyans or plaintiffs) appeal a judgment of the trial court entered on December 4, 2006. Court perceive no error in the trial courts decision following trial, which found the existence of a partnership and ordered an accounting. However, in the subsequent phase of the proceedings, the trial court abused its discretion in approving certain aspects of the receivers final account. Therefore, the judgment is affirmed in part, reversed in part and remanded with directions.

Carlos Soto Varela appeals from the judgment entered following conviction by a jury of the first degree murder of Holly Ann Lake (Pen. Code, 187, subd. (a), 189), and the unlawful driving or taking of a vehicle. (Veh. Code, 10851, subd. (a).) The jury found true an allegation that, in the commission of the murder, appellant had personally used a deadly weapon. (Pen. Code, 12022, subd. (b)(1).) Appellant was sentenced to prison for an indeterminate term of 25 years to life for the first degree murder conviction, plus one year for the deadly weapon enhancement. In addition, the court imposed a consecutive determinate term of two years for the unlawful driving or taking of a vehicle. Appellant contends that the prosecutor committed prejudicial misconduct and that the trial court erroneously instructed the jury. Court affirm. However, Court direct the trial court to correct clerical errors in the abstract of judgment.

Plaintiff and respondent Valerie Middleton got a Citibank credit card, bought things with it, and then stopped paying on June 5, 2001. She owed Citibank nearly $13,000. Defendant and appellant L&J Assets acquired the debt that Middleton owed Citibank. On June 2, 2005, L&J sued Middleton and her husband, plaintiff and respondent Matthew Livermore, for breach of contract. L&J also claimed that -- to avoid her creditors -- Middleton had fraudulently transferred to Livermore her ownership interest in the condominium where they both lived. L&J recorded a lis pendens against the property. While that lawsuit was pending, Livermore tried to sell the condominium. To complete the sale, about $37,000 had to be put into an escrow account. It was distributed to L&J on close of escrow. L&J then dropped its lawsuit.
Middleton and Livermore then filed this lawsuit against L&J for conversion and unjust enrichment. Based on a mistaken allegation in the complaint in the 2005 contract action, the trial court concluded that that lawsuit had been time-barred, and that L&J was not entitled to the funds it got from the escrow. The court entered judgment for Middleton and Livermore on both claims. Court reverse. L&Js contract action was timely. Court remand the matter for trial and a determination whether Middleton and Livermore can prove conversion and/or unjust enrichment.

Phillip Ray Howell appeals from the judgment entered following his conviction by a jury on five counts (counts 2, 3, 4, 5, and 8) of continuous sexual abuse of a child under the age of 14 years. (Pen. Code, 288.5.) The trial court imposed five consecutive 12-year prison terms for a total sentence of 60 years.
Appellant contends that the trial court erred in (1) admitting expert testimony about Child Sexual Abuse Accommodation Syndrome, (2) admitting evidence of his uncharged sexual misconduct, (3) excluding testimony of two witnesses, and (4) refusing to instruct the jury on the applicable statute of limitations. In addition, appellant contends that his 60 year prison sentence constitutes cruel and unusual punishment in violation of the federal and state constitutions. Court affirm.