CA Unpub Decisions

Defendant Ashton Y., a 12-year-old 7th grader in a special education class, and a ward of the court, was adjudged to have committed vandalism and ordered to spend 163 days in an appropriate juvenile institution. His adjudication was based on his having set fire to a flag in his classroom. Court discuss the relevant facts in connection with the issues he raises on appeal.

James M. Dunne (plaintiff) sued his daughter, Kelly Dunne (defendant), for breach of fiduciary duty, conversion, failure to provide an accounting, elder abuse, and money had and received. Defendant cross-complained against plaintiff and others. Her claims against plaintiff included breach of an oral contract, conversion, and money or services had and received. By stipulation, defendants claims against the other cross-defendants were stayed pending resolution of the action between plaintiff and defendant. Plaintiff appeals, arguing the oral agreement underlying the cross-complaints contract count is invalid as a matter of law. He also contends the evidence fails to support the no-damages finding on the complaints breach of fiduciary duty count. Court affirm the judgment.

Defendant contends the court erred in admitting evidence and in instructing the jury. Court affirm.

Jamie Liebrand worked as a food server at Chilis Restaurant in Irvine, California. She sued her employers for pregnancy discrimination, intentional infliction of emotional distress, and for the failure to provide pregnancy leave. She brought the action against her immediate supervisor, Chris Artaserse, as well as Chilis Inc., a Texas corporation; Brinker International, Inc., a Delaware corporation, Brinker International Payroll Co., L.P., and Brinker Restaurant Corporation, a Delaware corporation (collectively referred to as Brinker). The trial court denied Brinkers motion to compel arbitration, concluding it had failed to meet its burden of proving Liebrand agreed to arbitrate the employment dispute. Affirm the order denying arbitration.

The City of Seal Beach (the City) fired Police Officer Charles Castagna, based on its finding that Castagna had lied under oath in court, and had therefore rendered himself incapable of performing his duties by compromising his ability to testify in court as a material witness. The Citys Civil Service Board (the Board) sustained the charges forming the basis of Castagnas termination. The Board found the City had demonstrated, by a preponderance of the evidence, that a signature on a contract was a forgery. (Castagna claimed he had been present when the contract was signed, and the signature was authentic.) The trial court granted Castagnas petition for a writ of administrative mandamus, and the City appeals from the trial courts judgment. The court correctly afforded a strong presumption of correctness to the Boards findings, and placed on Castagna the burden of proving those findings were contrary to the weight of the evidence. Then, in exercising its independent judgment, the court found the Boards forgery finding was not supported by the weight of the evidence. The court therefore concluded the Boards finding that Castagna had rendered himself incapable of performing his duties was also contrary to the weight of the evidence, and reversed the Boards affirmance of the termination of Castagnas employment. The trial courts findings were supported by substantial evidence. Court therefore affirm.

A receivable of a dissolved partnership was included as an asset in the confirmed bankruptcy reorganization plan of one of the former partners. The receivable was finally collected after that partners death. The other former partner petitioned the probate court for one half of the amount collected. The probate court found the entire receivable was a part of the bankruptcy estate, and therefore denied the other former partners claim to one half the amount collected. Court affirm. The entire receivable was listed as a bankruptcy estate asset in the confirmed reorganization plan. Even if each of the former partners had claim to a one half share of the receivable (and there is no evidence in the appellate record supporting such an assumption), the final reorganization plan vested the entire asset in the bankruptcy estate. The claim in the probate court for one half of the amount collected is merely an improper collateral attack on a federal bankruptcy courts order. The order is affirmed. Respondent to recover costs on appeal.

After defendant Jose Luis Diaz waived his right to a jury trial on his prior serious felony convictions and strikes, he was convicted of inflicting corporal injury resulting in trauma on Rosalinda Barrera, the mother of his children and with whom he had resided for about 13 years. (Pen. Code, 273.5, subd. (a); all further statutory references are to this code unless otherwise noted.) Defendant admitted two prior prison terms ( 667.5, subd. (b)) and two prior strike convictions ( 667, subds. (d), (e) & 1170.12, subds. (b) & (c)(2)(A)) and then moved to strike the convictions. The court granted the motion as to one conviction. It sentenced defendant to the upper term of four years (273.5) and, based on the remaining strike conviction, doubled it to eight years ( 667, subds. (d), (e)(1)). Two additional consecutive one-year terms were also imposed based on two prior prison terms defendant admitted. ( 667.5, subd. (b).) Defendant was given 30 days to file written argument on his own behalf. That period has passed and we have received no communication from him. Court examined the entire record to determine if any arguable issues were present, including those suggested by counsel, and found none. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Johnson (1981) 123 Cal.App.3d 106, 111-112.) The judgment is affirmed.

Baby Girl S. (the baby) was taken into protective custody in September 2007 after she and her mother, D.S. (Mother), tested positive for the presence of methamphetamine at the time of the babys birth. The Orange County Social Services Agency (SSA) filed an amended juvenile dependency petition (the petition) alleging Mother and the babys father, Tom R. (Father), failed to protect her and that the babys half siblings have been abused or neglected. (Welf. & Inst. Code, 300, subds. (b) & (j).) (All further statutory references are to the Welfare and Institutions Code.) Mother moved to dismiss the appeal as moot because the ordered reunification services have already been provided and this court is unable to fashion an effective remedy. Court agree and therefore dismiss.

The trial court granted respondent Hoa Phams application for a domestic violence restraining order against her husband, appellant Mathieu Pham, under the Domestic Violence Prevention Act (DVPA) (Fam. Code, 6200 et seq.). On appeal, Mathieu[2] asks this court to set aside the order on the ground that the order violates his constitutional rights. For reasons that Court explain, Court find that Mathieu has failed to meet his burden, as the party challenging an appealable order, to show reversible error by an adequate record. Therefore, Court affirm the order.

Jaime Santana appeals his conviction by jury trial of two counts of forcible rape in concert (Pen. Code, 264.1) (counts 1 & 2) and one count of forcible sexual penetration in concert (Pen. Code, 264.1) (count 3).[1] He contends the court erroneously admitted the victims videotaped statement, his defense counsel was ineffective for failing to move to redact pretrial statements made by him and the victim and the court committed Cunningham error (Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham)). Court agree that the case must be remanded for resentencing, but otherwise affirm.

Contractor David Grassi appeals from a judgment of the San Mateo County Superior Court on cross-actions arising from appellant Grassis construction of a concrete retaining wall for respondent Robert Tang. Appellant contends the trial court abused its discretion by excluding all three of his expert witnesses from testifying at trial. He argues that the evidentiary sanction was unwarranted because: (1) respondent refused to tender witness fees; (2) lesser sanctions were available; and (3) the court did not conduct a hearing pursuant to Evidence Code section 402 before excluding the experts. Court affirm the judgment.

Appellant Sharmalee Fernando (wife) and respondent Donald Gnanakone (husband) began dating in approximately 1986. After having a daughter in 1988 and a son in 1990, the parties married in 1999, but wife filed for dissolution in 2000. Property and support issues were resolved in a 2006 judgment. The portions of the judgment ordering an equalization payment and child support arrears from Sharmalee Fernando to Donald Gnanakone is reversed and the matter is remanded to the trial court for further proceedings in accordance with this opinion. On remand, the trial court is directed to enter a new and different judgment ordering an equalization payment from Donald Gnanakone to Sharmalee Fernando of $30,650 and calculating the child support arrears owed to Donald Gnanakone, based on Sharmalee Fernandos monthly income of $5,022. Sharmalee Fernando is awarded her costs on appeal.

A modification decision.

Petitioner, Los Angeles County Department of Parks & Recreation, contends that the Workers Compensation Appeals Board (WCAB) lacked jurisdiction to award respondent, Merrell Lee Calvillo, a new period of temporary total disability indemnity that began more than five years from the date of injury. Petitioner alleges that prior stipulations to temporary total disability indemnity, the order to comply and payment resulted in an executed award, which required a petition for continuing jurisdiction within five years of the date of injury under the Labor Code.[1] Petitioner further contends that the WCABs award of a new period of temporary total disability indemnity that began more than five years from the date of injury is precluded under Nickelsberg v. Workers Comp. Appeals Bd. (1991) 54 Cal.3d 288 [following award WCAB lacked jurisdiction to award new period of temporary total disability indemnity where surgery causing disability and petition for continuing jurisdiction occurred more than five years from date of injury] and the Supreme Courts interpretation of the 1978 amendment to section 4656. Because the stipulated issues were expressly reserved for trial, Court conclude that the stipulations, order to comply and payment resulted in an interim and not an executed or formal award that required a petition for continuing jurisdiction under the Labor Code. However, the temporary total disability indemnity awarded by the WCAB is not a continuous period that began within five years of the date of injury as required by section 4656 and Nickelsberg. Therefore, the WCABs decision is affirmed in part and reversed in part and the matter is remandedfor further proceedings consistent with this opinion.