CA Unpub Decisions

Judith M. appeals an order terminating her parental rights to her child, Moses L. She contends the beneficial parent-child relationship to termination of parental rights and adoption applied in this case, and the evidence was insufficient to show that Moses was adoptable. Court affirm the order.

Loren L. appeals the judgment establishing a conservatorship of his person under the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code, 5000 et seq.). Citing Peoplev.Wende (1979) 25 Cal.3d 436, Anders v. California (1967) 386 U.S. 738, and Conservatorship of Ben C. (2007) 40 Cal.4th 529, his appointed counsel asks that we independently review the record to determine whether there are any arguable appellate issues. Pursuant to Anders, he lists, as a possible but not arguable issue, whether substantial evidence supported the finding that Loren was gravely disabled. The appeal is dismissed.

Sara H., mother, appeals from a dependency judgment concerning her daughter, Nicole. Mother argues there was not substantial evidence of adoptability and the trial court erred in not finding an exception based on the existence of a beneficial parental relationship. Court reject these two contentions and affirm the judgment.

Respondent Louisiana-Pacific Corporation (Louisiana-Pacific) manufactured Nature Guard shingles as a fire-resistant alternative to cedar shakes between 1995 and 1998. In January 2001, Virginia Davis, a homeowner who purchased Nature Guard for her home, brought this action on behalf of herself, and all others similarly situated, for damages and other relief, complaining that Nature Guard was not what it was promised to be and that her roof was not performing as reasonably required of a roofing material. The alleged deficiencies included cracking, moisture intrusion, discoloration, lifting, and warping.
The judgment is affirmed.

Appellants Donald Ray and Mary Joan Gaskin, trustees of the Gaskin Family Living Trust (Gaskins), own property in a common-interest developed community known as the Juniper Highlands. The property was purchased in December 2001. In 2004, a dispute arose between the Gaskins and respondent, The Highlands Property Owners, Inc. (Association), over use of the Gaskin property. According to the Association, the Gaskins violated the controlling covenants, conditions, and restrictions (CC&Rs) recorded on June 19, 1991, by (1) installing a gate across their driveway in a position other than the one approved by the Associations architecture committee; (2) installing a corrugated metal roof without prior approval; (3) storing personal items on their property in full view of other property owners; (4) constructing a nonfunctioning outhouse, as yard art, without prior approval; (5) placing both the outhouse and the gate in violation of setback requirements; and (6) parking vehicles within the private roadway of the development, creating a nuisance. The Gaskins were asked by the Association to address these issues and bring their property into compliance with the CC&Rs. Offended by the Associations position and claiming discriminatory harassment, the Gaskins filed a complaint against the Association, alleging claims of negligent and intentional infliction of emotional distress, invasion of privacy, defamation, and fraud (case No. S-1500-CV-255041). By the time of trial, the only remaining causes of action were negligent infliction of emotional distress and fraud. The judgment is affirmed.

Appellant, George Edward Francis, was charged in an information filed July 27, 2006, with possession of heroin (Health & Saf. Code, 11350, subd. (a), count one), driving a vehicle under the influence of a drug (Veh. Code, 23152, subd. (a), count two), driving a vehicle with a blood alcohol level of .08 percent or more (Veh. Code, 23152, subd. (b), count three), possession of narcotic paraphernalia (Health & Saf. Code, 11364, count four), and possession of a hypodermic needle and syringe (Bus. & Prof. Code, 4140, count five). Counts two and three alleged an enhancement that Francis was driving over the speed limit on a freeway (Veh. Code, 23582). The information alleged three prior serious felony convictions within the meaning of the three strikes law (Pen. Code, 667, subd. (d))[1]and five prior prison term enhancements ( 667.5, subd. (b)). The case is remanded for the clerk to prepare an amended abstract of judgment indicating that Francis was sentenced pursuant to the two strikes provision of the three strikes law. The amended abstract shall be sent to the appropriate authorities. The judgment is affirmed.

On January 16, 2007, the Kings County District Attorney filed a complaint in superior court charging appellant Jesus Zavala as follows:
The judgment is affirmed.

Theres a saying in investment strategy and tax law that if something is too good to be true, it is. In the case before us, that something was an alleged guaranteed 110 percent return on ones money. However, Court reject the cross-appeal of First AFG and related parties for attorney fees. The attorney fee provision at issue, when read in context, is confined to the situation where a borrower defaults on a note, which is not in the least applicable here. The judgment is affirmed.

The trial court sentenced defendant Jon Kirk McKinney to four years in prison after a jury convicted him of second degree robbery and aggravated assault, and returned findings that the crimes were committed against an elderly victim and defendant willfully inflicted great bodily injury on the victim. We conclude the trial court did not violate defendants constitutional right of confrontation by admitting statements the victim made to a police officer at the crime scene and by overruling his hearsay objections to both those statements and another the victim made to a second witness.
Thus, Court conclude the trial court did not abuse its discretion in admitting the statements as spontaneous declarations.

Pursuant to a negotiated disposition, on April 10, 2007, defendant Thien Vo pleaded no contest to one count of forgery of a check (Pen. Code, 470, subd. (d), count one) and one count of grand theft of personal property of a value over $400 (Pen Code, 484, 487, subd. (a), count five). Further, defendant admitted that he had a prior conviction for first degree burglary (Pen. Code, 459) and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The judgment is modified to reflect an award of 253 days custody credits. As so modified the judgment is affirmed. The Superior Court is directed to prepare an amended abstract of judgment that reflects the correct award of custody credits and transmit the amended abstract of judgment to the Department of Corrections.

This appeal involves the interpretation of very broad indemnity provisions found in escrow instructions signed by parties to the escrow. The parties agreed to indemnify the escrow company for any costs (including attorney fees) it incurred in good faith as a result of litigation arising out of the escrow. After the escrow closed, one of the buyers who had signed the escrow instructions (appellant Su-Chin Lin Shen) sued the escrow company (respondent New Century Escrow, Inc.), raising multiple tort claims based upon its handling of the escrow. The escrow company repeatedly explained to the buyer that all of her causes of action lacked merit. It offered to waive any claim for costs if the matter were immediately dismissed, but stated that if buyer continued to prosecute her action, it would hold her liable for its attorney fees and costs under the escrow indemnification provisions. Buyer maintained the action for five months before dismissing her claims against the escrow company without prejudice. Thereafter, the escrow company, citing the indemnification provisions in the escrow instructions, moved for an award of costs, including attorney fees, that it had incurred in defending against the buyers lawsuit. After conducting two hearings, the trial court granted the motion.

Appellant Eric Faron Willis was convicted, following a jury trial, of two counts of second degree robbery in violation of Penal Code section 211, one count of second degree commercial burglary in violation of section 459 and one count of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1). The jury found true the allegations that appellant personally used a handgun in the commission of the robberies and burglary within the meaning of sections 12022.53, subdivision (b) and 12022.5, subdivision (a). The trial court sentenced appellant to a total term of 19 years and 4 months in state prison. Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his request for an additional peremptory challenge and abused its discretion in refusing to admit evidence of third-party culpability, and further contending that the prosecutor committed misconduct by eliciting excluded evidence. Appellant also contends that the imposition of the upper term for three of the four counts violated his right to a jury trial as set forth in Cunningham v. California (2007) 549 U.S. 270. Court affirm the judgment of conviction.

Appellant Joe Loera was convicted, following a jury trial, of one count of second degree murder in violation of Penal Code[1]section 187, subdivision (a). The jury found true the allegation that he personally used a knife in the commission of the murder within the meaning of section 12022, subdivision (b)(1). The trial court found true the allegations that appellant had suffered one prior serious felony conviction within the meaning of section 667, subdivision (2), two prior convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law) and served a prior prison term within the meaning of section 667.5, subdivision (b). The court sentenced appellant to a term of 15 years to life in state prison, doubled to 30 years to life pursuant to the Three Strikes law, plus a five-year enhancement term pursuant to section 667, subdivision (a) and a one year term pursuant to section 667.5. Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the finding that he was competent to stand trial. Court affirm the judgment of conviction.

Code of Civil Procedure section 425.16 (section 425.16 or the anti-SLAPP statute[1]) offers a procedure for early dismissal of meritless claims that are based upon a defendants exercise of constitutionally protected speech or petitioning activity. It involves a two-step analysis. First, when the defendant makes an anti-SLAPP motion, the trial court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. ( 425.16, subd. (b)(1).) Second, if the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.
Kohan is correct that the conduct on which Willenss claims are based is not the network broadcast without Willens being listed in the credits, but rather Kohans selling the show as her own singular idea. The result, however, is not the one Kohan seeks. To the contrary, the result, as the trial court correctly concluded, is that the anti SLAPP statute does not apply, because the conduct on which Willenss claims are based does not arise from Kohans exercise of her constitutionally protected right to free speech.