CA Unpub Decisions

Chevron U.S.A., Inc. (Chevron) appeals from an order denying its application for an order to show cause why its claim against Golden Eagle Insurance Corporation (GEIC) as third party administrator for respondent Golden Eagle Insurance Company (Golden Eagle) should not be allowed.[1] The underlying actions involved groundwater contamination claims. The policies in question had broad total pollution exclusions clauses which precluded coverage. Therefore, the trial court did not abuse its discretion in denying the application and accordingly Court affirm the judgment.

Appellant, an unsuccessful plaintiff in automobile-accident personal injury litigation, appeals from a post-trial court order denying his motion to tax costs and awarding the defendant in the action over $122,000 in costs. The order was based on defendants tender and plaintiffs rejection of a pretrial settlement offer made pursuant to Code of Civil Procedure section 998 (section 998). Court affirm the order.

The jury found defendant and appellant Robert Edward Kube guilty of robbery in violation of Penal Code section 211,[1]specially finding the robbery was in the first degree and defendant personally used a handgun in committing the robbery within the meaning of section 12022.53, subdivision (b). In a separate proceeding, with defendant having waived his right to a jury trial, the trial court found defendant suffered three prior convictionsa 1991 residential burglary ( 459), a 1994 narcotics possession offense (Health & Saf. Code, 11350), and a 2003 narcotics possession for sales offense (Health & Saf. Code, 11350)for which he served prison terms ( 667.5), with the burglary being a serious felony ( 667, subd. (a)) and a strike under the three strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court initially imposed a 30-year term, consisting of the upper term of 6 years doubled as a result of the strike prior, plus 10 years for the gun use enhancement, another 5 years for the prior serious felony enhancement, and 3 years for the three prior prison term enhancements. Four days later, after defendant had filed his notice of appeal, the trial court granted defendants motion to modify the judgment and ordered the three prior prison term enhancements stayed under section 654.
Court reverse that part of the judgment imposing and staying the one year enhancement for a burglary prior prison term and remand for further proceedings on the remaining prior prison term enhancements, and otherwise affirm.

A modification decision.

Jose Calderon appeals from the judgment entered following a jury trial in which he was convicted of three counts of forcible lewd act upon a child, counts 1-3 (Pen. Code, 288(b)(1)) with the further finding that for the purpose of committing these offenses he kidnapped the victim within the meaning of Penal Code sections 667.8, subdivision (b) and 207, subdivision (b). He was also convicted of kidnapping for child molesting, count 4 (Pen. Code, 207, subd. (b)) with the further finding that the victim was under the age of 14. He was sentenced to prison for 21 years, consisting of the middle term of six years for count 1, two concurrent terms of three years for counts 2 and 3, and 15 years for the kidnapping enhancement. Sentence for count 4 was stayed pursuant to Penal Code section 654.[1] Appellant contends his kidnapping conviction and the enhancements pursuant to Penal Code section 667.8, subdivision (b) must be reversed as there was insufficient evidence of substantial movement that was not incidental to the assault. For reasons stated in the opinion, Court affirm the judgment.

E.M. appeals from orders made in the dependency proceedings concerning her daughter Crystal. Specifically, she appeals from the order granting Crystal's Welfare and Institutions Code section 388 petition, in which Crystal asked the court to terminate legal guardianship and give her permission to marry. Crystal, who has lost touch with the DCFS and the courts, has not filed a brief in support of the order. DCFS, which did file such a brief, has asked that we take judicial notice of an April 2008 order vacating the order giving Crystal permission to marry. Court grant the request and agree with DCFS that the appeal from the order giving Crystal permission to marry is moot, and to that extent dismiss the appeal. As to the order terminating the guardianship, Court reverse.

Defendant Jerry Lee Walker pled no contest to assault with a deadly weapon (Pen. Code 245, subd. (a)(1); all further statutory references are to the Penal Code unless otherwise indicated) and two counts of possession of a sharp instrument in prison ( 4502, subd. (a)), and admitted eight prior strike convictions. ( 667, subds. (b)-(i).) Probation was denied and defendant was sentenced to two consecutive terms of 25 years to life in state prison.Defendant appeals, claiming the trial court abused its discretion by denying his motion to dismiss his prior strike convictions and that his sentence constituted cruel and unusual punishment. Court shall affirm.

Mary C. (appellant), the mother of Michael C. (the minor), appeals from orders of the juvenile court adjudging the minor a dependent child of the court and removing the minor from parental custody. (Welf. & Inst. Code, 360, subd. (d), 395.) Appellant challenges the sufficiency of the evidence to support the courts jurisdictional findings and dispositional order of removal. For the reasons that follow, Court affirm.

Arthur Torres, Julio Contreras, and Francisco Gongora were convicted of numerous offenses arising from their involvement in a methamphetamine distribution operation run by a gang known as the "Mexican Mafia." The prosecution's evidence showed that Torres was a crew leader for the Mexican Mafia operating a methamphetamine distribution operation in the community, and that Contreras and Gongora were part of his crew.
As to Contreras, Court modify the judgment to strike the gang enhancements on counts 1 and 6. As so modified, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and transmit a copy to the Department of Corrections and Rehabilitation.

A jury convicted Robert Gandara of attempted premeditated murder (Pen. Code,[1] 664, 187, subd. (a), 189) and assault with a deadly weapon or by means of force likely to produce great bodily injury ( 245, subd. (a)(1)). As to both counts, the jury found true allegations that he personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23), and on the attempted premeditated murder count, it found true allegations that he committed the attempted murder for the benefit of and at the direction of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The court sentenced Gandara to an indeterminate term of 15 years to life on the attempted premeditated murder count, a determinate concurrent three-year term for the assault count, and a consecutive one-year enhancement for the personal use allegation.
Court affirm the judgment.

In April 2005 Meek sued Martino for medical malpractice. After a several day trial, the jury found no negligence on Martino's part. Judgment in his favor was entered on October 20, 2006.
The appeal is dismissed.

Sempra Energy Resources (Sempra),[1]Michael Niggli and Dwain Boettcher (collectively, the Sempra parties) appeal from the trial court's order denying their motion to compel arbitration of the first amended cross-complaint filed by the California Department of Water Resources (DWR). DWR moves to dismiss the appeal and to impose sanctions. Court conclude that the Sempra parties waived their right to elect arbitration by participating in this litigation since 2002, and DWR's filing of an amended cross-complaint did not nullify the Sempra parties' waiver. Accordingly, Court affirm the trial court's order denying the motion to compel arbitration. Court also deny DWR's motion to dismiss the appeal and to impose sanctions, concluding that dismissal and sanctions are not appropriate in the context of this appeal.

Anna Yeung and her mother Anne Lee (defendants) appeal a judgment ordering them to pay $125,000 plus attorney fees to plaintiff Gregory Cuddeback. The court entered the judgment based on the terms of the parties' written settlement agreement. (Code Civ. Proc., 664.6.)[1] On appeal, defendants contend: (1) the court had no jurisdiction to enter judgment because Cuddeback had voluntarily dismissed the action before he moved to enforce the settlement agreement; and (2) the court abused its discretion in granting Cuddeback's section 473 motion to vacate the dismissal. Court conclude the court had jurisdiction to enter the judgment despite the voluntary dismissal. Under section 664.6, a court retains jurisdiction to rule on a section 664.6 motion to enforce a settlement if the parties requested the court to retain jurisdiction before the dismissal was filed, and the court agreed to do so. These conditions were satisfied in this case. Based on this conclusion, Court do not reach the issue whether additional grounds supported the court's vacating the dismissal under section 473.

The performance or promotion of acts of prostitution is not protected by either the free expression provisions of the state Constitution or the free speech provisions of the federal Constitution. Thus, the unlawful detainer action the plaintiff and respondent in this case, a commercial landlord, brought against its tenant on the grounds the tenant had been operating a house of prostitution on the leased premises was not subject to a motion to strike under our anti-SLAPP statute, Code of Civil Procedure section 425.16. Accordingly, Court affirm the trial court's order denying defendant and appellant's motion to strike.