CA Unpub Decisions

Appellants Mohamad Siry and Siry Investment, L.P., challenge a trial court order and judgment compelling them to refinance certain real property pursuant to the terms of a settlement agreement entered into between appellants and respondents. Because substantial evidence supports the judgment, Court affirm.

Ascent Media Group, LLC, (Ascent) appeals from a trial court order awarding summary judgment to Those Interested Underwriters at Lloyds (Underwriters). Ascent contends that the trial court committed error in connection with its interpretation and application of three exclusions set forth in the subject insurance policy (exclusion III.F (the assured vs. assured exclusion); exclusion III.I, and exclusion III.M). It also assigns error to the trial courts determination that there was no insurable loss as a matter of law. Finally, it argues that because the trial court erred in finding that Ascent could not establish its breach of contract claim, the trial courts order adjudicating the bad faith claim against Ascent must be reversed as well.
Court affirm.

Defendant Alfred F. Ortega appeals from a judgment entered after a jury found him guilty of count 1,[1]the lesser offense of petty theft in violation of Penal Code section 484;[2]count 3, possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a); and count 4, resisting arrest in violation of section 148. The trial court found true the allegation as to count 3 that defendant suffered three strike prior convictions within the meaning of section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i). As to count 3, possession of a controlled substance, defendant was sentenced to 25 years to life pursuant to section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i). As to count 1, petty theft, and count 4, resisting arrest, defendant was sentenced to 90 days for each crime and given credit for time served. The trial court ordered that defendants sentence was to run consecutively to a 16-month sentence imposed in case number KA072864, resulting from a violation of probation. The judgment is affirmed.

Francisco Javier Gallegos appeals the judgment entered after a jury convicted him of shooting at an occupied vehicle (Pen. Code,[1] 246) and on four counts of assault with a firearm ( 245, subd. (a)(2)). The jury also found true allegations that Gallegos had personally used a firearm in committing the assaults ( 12022.5, subd. (a)). He was sentenced to a total term of 14 years state prison. Court have examined the entire record and are satisfied that appellate counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at pp. 441-442.) The judgment is affirmed.

Cross-defendant and appellant California Portland Cement Company, doing business as Catalina Pacific Concrete, appeals from an order granting a motion filed by cross-complainant and respondent DNS Contractors, Inc. to strike appellants memorandum of costs. The trial court ruled that, given the totality of the circumstances, appellant was not a prevailing party entitled to costs under Code of Civil Procedure section 1032. Court reverse. Pursuant to section 1032, subdivision (a)(4), appellant was a prevailing party entitled to costs as a matter of right by reason of the dismissal of DNSs cross-complaint.

Appellant Rosa W. (Mother) appeals from the order terminating her parental rights as to the child Kendra G. on the ground that substantial evidence did not support the juvenile courts failure to apply the sibling relationship exception to termination codified in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(v). Court affirm.

Appellant Francisco V. (father) appeals from a juvenile court order terminating his parental rights to Francisco V., Jr., (minor). Father primarily contends that the juvenile court erred in (1) terminating parental rights after expressly finding that reasonable services had not been offered to father; and (2) failing to follow proper procedure for a 12-month review hearing. Court find no error; accordingly, Court affirm.

A modification decision.

Timothy A. Sheaffer appeals from denial of his petition for a writ of mandate to set aside the decision denying his application for industrial disability retirement or to reinstate him to his former position as a deputy district attorney. He contends the trial courts decision is procedurally flawed because the court refused to grant his request for a statement of decision and without one it cannot be ascertained that the trial court employed the proper standard of review. As to the merits, Sheaffer contends the evidence established his psychological disability was permanent and service-connected, or if the evidence was insufficient, the Board of Retirement of the San Joaquin County Employees Retirement System (the Board) had a duty to develop a fuller record on these issues.
Court find the trial court erred in failing to issue a statement of decision. Although such a failure is often treated as reversible per se (Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129 (Miramar Hotel)), in this case Court find no miscarriage of justice permitting a reversal. (Cal. Const., art. VI, 13.) The only evidence offered as to the permanence of the disability, that it lasted three years without treatment, is legally insufficient to establish a permanent disability. Since Sheaffer failed to establish a permanent disability, the trial court did not err in denying the petition for a writ.

Pursuant to a plea agreement, defendant pleaded no contest to one count of a lewd or lascivious act upon a child of 15 years old when he was 10 years older than the child. (Pen. Code, 288, subd. (c)(1).) Two other counts were dismissed and defendant was sentenced to the upper term of three years. At sentencing, defendant wanted to withdraw his plea. On appeal, defendant contends the trial court erred in failing to hold a Marsden hearing after defense counsel failed to bring the motion to withdraw the plea. Defendant contends he received ineffective assistance of counsel. We agree with the People that defendant is in effect challenging the validity of his plea and such a contention is not cognizable on appeal without a certificate of probable cause. (Pen. Code, 1237.5.) Court dismiss the appeal.

Because the injunction expired by its own terms in June 2007, Court dismiss the appeal as moot.
The appeal is dismissed as moot. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

The trial court suspended execution of a 16-month prison sentence and placed defendant Kevin Lamar Archangel on five years of formal probation after he pled no contest to possession of a controlled substance. Defendant was ordered to pay specified fees and fines. The judgment is affirmed.

Defendant Jeremy Lee Conley and a codefendant broke into a school and stole musical equipment and other items worth about $575. Defendant pled no contest to second degree burglary, a felony, and no contest in another case to the possession of a switch blade knife, a misdemeanor. He also admitted that his commission of both crimes was a violation of his probation in a third case. The trial court suspended imposition of sentence and reinstated probation under terms and conditions, including that defendant serve 180 days in county jail and pay certain fees and fines. Having undertaken an examination of the entire record, Court find no arguable error in favor of defendant. The judgment is affirmed.

This case involving an employee's action against his employer under the under the California Fair Employment and Housing Act (FEHA) (Gov. Code,[1] 12900 et seq.) is before us a second time, following remand from the California Supreme Court, which reversed the judgment of this court and remanded the matter to this court "for further proceedings consistent with this opinion." (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1174 (Jones).)
The California Supreme Court "granted defendants' petition for review limited to the question whether an individual may be held personally liable for retaliation under the FEHA." (Jones, supra, 42 Cal.4th at p. 1161.) The Supreme Court held that an employer may be held liable for retaliation under section 12940, subdivision (h), but nonemployer individuals may not be held personally liable for their role in that retaliation. (Jones, supra, 42 Cal.4th at pp. 1160, 1173.) Accordingly, as we discuss more fully below, we affirm the JNOV in favor of Weiss on Jones's cause of action for retaliation. As to the other issues raised in this matter, we reissue our previous opinion, with appropriate modifications, and deny defendants' motion to dismiss Jones's appeal from the order granting a new trial; reverse the order granting defendants' motion for JNOV as to The Lodge; reverse the order granting defendants' motion for new trial; and reinstate and affirm the original judgment as to The Lodge.