CA Unpub Decisions

This is a mothers petition for an extraordinary writ in which she challenges a dependency court order scheduling a permanent plan hearing for her children. (Welf. & Inst. Code, 366.26.) Court deny the petition.

Sara S. (mother) has filed a petition for extraordinary writ (Cal. Rules of Court, rule 8.452) challenging an order of the juvenile court denying her family reunification services with her four children, and setting the underlying dependency proceeding for a hearing pursuant to Welfare and Institutions Code section 366.26. Court deny the petition.

This is a fathers pro se petition challenging the dependency courts order scheduling a hearing to determine whether to appoint co-legal guardians for three of the fathers children. (Welf. & Inst. Code, 366.26; Cal. Rules of Court, rule 8.452.) Court deny the petition.

Jerome H. Sprague appeals from an order enjoining him from engaging in various zoning and building code violations. He contends that he is entitled to a new trial due to procedural irregularities, including denial of his motions for a continuance, his right to a jury trial, his right to cross-examine witnesses against him, and his right to make an opening statement and closing argument. In Spragues view, the alleged irregularities reflect structural errors at trial that are reversible per se and demonstrate that the trial judge was biased against him. Because the claims lack merit, Court affirm the judgment.

A jury convicted Daniel Parra of corporal punishment to a spouse (Pen. Code, 273.5, subd. (a))[1]; assault with a firearm ( 245, subd. (a)(2)); false imprisonment by violence, menace, fraud or deceit ( 236 & 237, subd. (a)); child abduction ( 278.5, subd. (a)); and criminal threats ( 422). The jury also found true the allegation of personal use of a firearm in connection with one count of the information ( 12022.5, subd. (a)). Parra admitted a serious felony prior conviction within the meaning of section 667, subdivision (a)(1) and a serious/violent felony conviction within the meaning of section 667, subdivisions (b) through (i). Parra was sentenced on this case and two separate cases (Nos. SCD200362 & SCD194436) to a total determinate term of 19 years, four months.
Parra appeals contending the court erred in failing, sua sponte, to modify the jury instruction defining assault. He further contends the evidence is insufficient to support the conviction for criminal threats. Court reject both contentions and affirm.

We affirm the judgment in this inverse condemnation case. Plaintiffs and respondents OPM, Inc., and Aminpour & Sons, Inc., a California corporation dba Gateway Inn (OPM), own a motel and parking lot near the international border at San Ysidro. Defendant and appellant San Diego Metropolitan Transit Development Board (MTDB) is a public agency which owns and operates a trolley system. The trolley runs in front of OPM's motel and parking lot. In the late 1990's MTDB determined that in order to facilitate the movement of its trolleys in the border vicinity and improve overall traffic in the area, MTDB needed to move its trolley tracks from the center of East San Ysidro Boulevard, which fronts OPM's property, to the eastern edge of East San Ysidro Boulevard, immediately abutting OPM's property. In moving the tracks to the front of OPM's property, MTDB was required to eliminate the two northbound lanes of East San Ysidro Boulevard which had previously fronted OPM's property. In place of the two northbound lanes which had provided fairly free-flowing access to and from OPM's property, MTDB constructed one northbound lane on the west side of its new tracks and two new entrances across its tracks to OPM's property. The two new entrances to OPM's property were regulated by rail crossing gates and bells which activated when a trolley was within 100 feet of the crossing.Finally, MTDB makes a number of evidentiary contentions which Court find unpersuasive.

Edgewater Powerboats, LLC (Edgewater) appeals from a judgment after a jury trial in favor of Dwight Deacon Brown in Brown's lawsuit alleging that he bought a defective Edgewater powerboat. Edgewater contends that the trial court improperly awarded consequential loss of use damages under the Song-Beverly Consumer Warranty Act (Civ. Code,[1] 1790 et seq.) (Song-Beverly Act) based on what it would have cost Brown to rent a replacement boat while his boat was unusable. Edgewater further contends (1) that the jury's award of a penalty under the Song-Beverly Act and the trial court's award of attorney fees must be reversed because they were tainted by the improper consequential damages award; and (2) that the trial court improperly awarded duplicative damages.
We conclude that the trial court improperly awarded $108,000 in loss of use damages under the Song-Beverly Act and that the jury's award of a penalty in the amount of $240,500 under the Song-Beverly Act is unsupportable without the erroneous loss of use award. Court affirm the portion of the judgment finding liability against Edgewater, but we vacate the award of damages and attorney fees and costs, and Court remand for a new trial on the issue of damages.

We affirm the judgment for specific performance and damages entered by the trial court in favor of the purchasers of real property, plaintiffs and respondents Gregory T. Joyner and Marisa A. Joyner, and against defendant and appellant Ken Yeung, the seller. Contrary to Yeung's argument, he may not assert a contractual right of arbitration for the first time following a trial on the merits and entry of a judgment in favor of the Joyners. Moreover, the fact that after the trial he has located a witness who might contradict the testimony of one of the Joyners does not warrant reversal of the trial court's judgment. Finally, the fact the respondents did not avail themselves of the right to specific performance provided for in a judgment does not entitle the appellant to relief from the judgment.
Judgment affirmed.

Linda A. Evans (Linda)[1]appeals in propria persona two orders (the ex parte orders) the family court issued at an ex parte hearing on June 5, 2007:[2] (1) an order denying her in propria persona requests for issuance of a temporary restraining order and an order to show cause (OSC) re preliminary injunction against her former husband, Thomas C. Evans (Thomas), and for the calendaring of an OSC hearing "to address the matter of Child Custody Modification"; and (2) an order awarding $1,000 in sanctions against her, payable to Thomas, to compensate him for attorney fees he incurred in connection with both the June 5 hearing and the previous June 1 ex parte hearing on Linda's in propria persona requests for a restraining order against him and various other forms of relief concerning custody and visitation of their minor children. Thomas did not file a respondent's brief.
In her opening brief, Linda contends that sufficient evidence substantiated Thomas's wrongful conduct and his documented anger management difficulties. Court conclude Linda has failed to meet her burden as the appellant of showing the court erred in denying her ex parte requests or in awarding attorney fees in favor of Thomas. Accordingly, Court affirm the ex parte orders.

A fundamental precept of appellate process is the principle that a litigant may not accept the benefits of a judgment or order and nonetheless attack the judgment or order on appeal. This principle does not apply when there is no real dispute the litigant was entitled to the benefits the litigant accepted.Here, appellant and respondent vigorously contested the amount of attorney fees to which appellant is entitled in the trial court. Appellant has now appealed from the trial court's award of attorney fees on the grounds the award is inadequate. However, the record shows that following entry of the trial court's award, appellant accepted payment of the attorney fees awarded by the trial court. Under these circumstances, where there was a bona fide dispute about the appellant's right to the fees awarded by the trial court, appellant waived her right to appeal when she accepted payment of those fees.

The juvenile court entered a true finding that Max M. possessed a knife on school grounds, a misdemeanor (Pen. Code, 626.10, subd. (a), 17, subd. (b)(4)). It adjudged him a ward and placed him on probation. Max appeals, contending the People failed to prove he knowingly and intentionally possessed the knife, so the true finding is not supported by substantial evidence and he was deprived of his Sixth Amendment rights. The People properly concede the court committed reversible error by failing to require proof Max knowingly possessed the knife. The judgment is reversed.

Defendant and appellant Irene Sisneros appeals after she was convicted of one count of bringing a controlled substance into a correctional facility and one count of possessing a controlled substance in a correctional facility. (Pen. Code, 4573.5, 4573.6.) Defendants appellate counsel filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], asking this court to undertake a review of the entire record. After undertaking this review, Court requested counsel to brief the following questions: The matter is remanded to modify the probation revocation fine to reflect a fine of $200, not $220. The superior court is further ordered to correct the abstract of judgment to reflect the correction, and to forward a copy of the amended abstract to the appropriate correctional authorities. The matter is further remanded to modify probation condition No. 7 to strike the reference to pets in general. The court may impose a new, separate, narrowly tailored condition of probation. In all other respects, the judgment is affirmed.

On September 12, 2007, pursuant to a plea agreement, defendant and appellant Horace Simmons pled no contest to carrying a loaded firearm by a gang member. (Pen. Code, 12031, subd. (a)(2)(C), count 1.)[1] (Case No. FVI701885) In exchange, the trial court dismissed other charges against him, which included carrying a concealed firearm ( 12025, subd. (a)(2), count 2), active gang participation ( 186.22, subd. (a), count 3), and unlawful firearm activity ( 12021, subd. (e), count 4). The court ordered defendant to appear for a sentencing hearing on October 19, 2007. However, on September 24, 2007, a felony complaint in case No. FVI702083 was filed against defendant based on an earlier incident. Defendant was charged with one count of attempted murder ( 664 and 187, subd. (a), count 1), assault with a firearm ( 245, subd. (a)(2), count 2), and active gang participation ( 186.22, subd. (a), count 3). The complaint also alleged that counts 1 and 2 were committed for the benefit of a street gang ( 186.22, subd. (b)(1), that a principal used a firearm in committing count 1 ( 12022.53, subds. (d) & (e)(1)), and that defendant personally used a firearm in committing count 2 ( 12022.5, subds. (a) & (d)). On October 11, 2007, defendant pled no contest to count 2 and admitted the related gang and personal firearm use enhancements. In exchange, all other charges were dismissed, and the court sentenced defendant to state prison for a total term of 11 years, which was comprised of three years on count 2, plus three years on the personal firearm use enhancement and five years on the gang enhancement. In addition, the court imposed a concurrent two-year term in case No. FVI01885. Defendant filed a notice of appeal after the sentencing hearing. His request for a certificate of probable cause was denied. Court affirm.

In 1981 and again in 1993, defendant Aaron Martin Wheeler was convicted of lewd and lascivious acts with a child under the age of 14 years in violation of Penal Code section 288, subdivision (a). He served prison terms for both offenses. Prior to the end of his last prison term, the Fresno County District Attorneys office (the County) filed a petition to have Wheeler declared a sexually violent predator (SVP) and committed for a two-year term under the supervision of the Department of Mental Health (Department) for treatment and confinement, as provided for by the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code,[1] 6600 et. seq.) The petition was granted and Wheeler was committed for a period of two years. On September 24, 2002, just prior to the expiration of the initial two-year term, the County filed a petition to recommit Wheeler for an additional two-year term. For reasons not clear from the record, the 2002 petition remained pending on September 12, 2006, when a third recommitment petition was filed by the County.
On October 11, 2006, after a jury trial, Wheeler was found to meet the criteria for commitment as an SVP. The court in turn ordered that Wheeler be committed for an indeterminate term. The order of recommitment is affirmed.