CA Unpub Decisions

Luis Salmeron appeals from the judgment sending him to prison for four years following a jurys verdict of guilt for first degree burglary. (See Pen. Code, 459-460.) Salmeron claims that there is insufficient evidence to support the jurys finding of guilt, alleging there was no evidence he entered the residence with the intent to indecently expose himself or commit a theft. Court disagree and affirm.

We conclude in these two consolidated appeals before us that the trial court erred by denying appellants motions to set aside a series of judgments entered against them in this procedurally convoluted action. We find that one of the judgments entered pursuant to a stipulation by appellants counsel is void for lack of implied or express authority; the others must be set aside under the mandatory and discretionary provisions of Code of Civil Procedure section 473. Court therefore reverse the denials of the motions to vacate the judgments, and reverse all of the judgments entered in the case against appellants.

Plaintiff Jennifer Gill suffered a cut on her face when she collided with the metal pole supporting an outdoor basketball backboard. The pole was on premises of defendant Tamalpais Union High School District (Tamalpais or District). While still on Tamalpais property awaiting first aid treatment from Presidio Sport & Medicine (Presidio), Gill fell off a raised counter and suffered additional injuries. A jury found for Gill, apportioning 60 percent of the responsibility for her damages to Tamalpais and 40 percent to Presidio. The jury awarded Gill approximately $477,000 for economic and non-economic losses. After applying Proposition 51, the court entered judgment for Gill against Tamalpais in the amount of $336,932. On Tamalpaiss cross-complaint against Presidio for indemnification, the judge entered judgment in favor of Tamalpais for $50,572.80. All parties have appealed, and the appeals have been consolidated.

Counsel for defendant Stephen Ellis Smith has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents defendant has been apprised of his right to file a supplemental brief. Defendant has filed a letter brief. Court have conducted the review requested by counsel, and have considered defendants letter brief and, finding no arguable issues, affirm the judgment.

Attorney William Beverly (Beverly) appeals the judgment on a jury verdict on the cross-complaint of his former clients Catherine Outland and Mary Susan Outland Gleason, individually and as Administrator of the Estate of Christine Lucille Outland Martell (collectively the Outlands). The jury found Beverly committed constructive fraud, professional negligence, and breach of fiduciary duty arising out of two discrete events, (1) Beverlys preparation and recordation of a quitclaim deed that erroneously conveyed title to the Outlands as tenants in common, and (2) Beverlys facilitation of a loan from one of Beverlys clients to the Outlands and two developers with whom the Outlands were in a partnership. On appeal, Beverly principally contends that the statute of limitations has run on the Outlands claims, and that the jury erroneously included certain items in the Outlands damage award. Court affirm the judgment on the claims relating to the quitclaim deed, but reverse with respect to the claims relating to the loan.

Christopher Caso and his wife Anna Marie Caso appeal from the judgment entered in their personal injury action after the trial court granted summary judgment in favor of Peter O Fallon, Merritt Yohnka and Randy Hall, as well as their respective loan-out corporations Ryan Productions, Inc. (RPI), Merritt Yohnka, Inc. (MYI) and Nimrod Productions, Inc. (NPI). The trial court ruled the Casos claims were barred by workers compensation exclusivity. Court affirm.

Plaintiff and appellant Pakamas Chmielewski (plaintiff) took an unpaid medical leave of absence from her job at defendant and respondent Target Corporation (Target). Because her leave exceeded the 120 day maximum allowed under Targets unpaid leave policy, Target filled her position with a permanent employee. Plaintiff initially returned to work in a position she believed was comparable in pay and responsibility to her prior position, but almost immediately was placed in a position that provided lower pay, fewer hours, and reduced responsibility. She complained to management, indicating that she wanted a position comparable to the one she held prior to her leave, but was informed that no such positions were currently available. And, when comparable positions did subsequently become available, plaintiff failed to submit written applications for them, believing she was not required to do so. Court therefore affirm the judgment in its entirety.

Petitioner and appellant Russell Fischer (Fischer) was suspended for 10 days from his job as an electric station operator with the Los Angeles Department of Water and Power (DWP) for violating DWP safety procedures on two separate occasions. He unsuccessfully appealed his suspension to the Board of Civil Service Commissioners (the Board). Fischer petitioned the Superior Court for a writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5, subdivision (a).[1] The Superior Court denied the petition. On appeal, Fischer contends that (1) the trial court erroneously afforded a presumption of correctness to the findings of a DWP investigation that was obviously flawed and prejudicial; (2) the trial court erred under Evidence Code section 412 by crediting an adverse witnesss hearsay testimony over Fischers contrary testimony; and (3) the 10-day suspension was grossly excessive. Court reject each of these contentions and affirm.

Audrey B. (Mother) appeals from the juvenile courts summary denial of her section 388[1]petition by which she sought to regain custody of her two children or, alternatively, to obtain reinstatement of reunification services. We conclude the juvenile court did not abuse its discretion in finding that Mother had failed to make a prima facie showing that her proposed change would be in the best interests of the children. Court therefore affirm the order denying the petition without a hearing.

Defendant Mehereteab Kassa, doing business as L&E Liquors, appeals from a judgment following a court trial. The court awarded damages of $12,600 to plaintiff Verzhera Amirkhanian, doing business as American Credit Bureau Services, on her breach of contract claim. Kassa moved for a new trial, which the trial court denied. Kassa challenges that denial on appeal. Court affirm.

C.V. (Mother) appeals from an order of the juvenile court terminating her parental rights to her son, Martin D. Mother contends that, given the nature of her relationship with Martin, the juvenile court erred in failing to find applicable the exception which would have avoided termination of her parental rights. (Welf. & Inst. Code, 366.26, subd. (c)(1)(A).)[1] Mother further contends that the court did not have before it evidence regarding Martins wishes, which the court was required to consider. Finally, she contends that the court violated her rights to due process by limiting her counsels time to present direct examination, and failing to allow Mother to present rebuttal evidence. Court affirm the order terminating parental rights.

Jerome D., the father of D.D., born June 2004 and Baby Boy D., born in March 2007, has filed a mandate petition pursuant to California Rules of Court, rule 8.452. The father seeks to set aside an order scheduling a permanent plan hearing pursuant to Welfare and Institutions Code section 366.26.[1] Specifically, the father contends he complied substantially with the reunification plan managed by the Department of Children and Family Services (the Department). He argues he should be granted additional time to complete the reunification plan pursuant to section 361.5, subsection (a). Court deny the petition.

Julie B. is the mother of Lucy B., born October 2000. On April 29, 2007, Julie stabbed her husband, Cole B., in the arm with a kitchen knife. Lucy saw Cole's wound, which was bleeding badly, and ran to a neighbor for help. The San Diego County Health and Human Services Agency (Agency) detained Lucy in protective custody and filed a petition under Welfare & Institutions Code section 300, subdivision (b). Lucy told the social worker that Julie and Cole often argued, and pushed, shoved, hit and threw things at each other. Lucy said Cole was the only father she knew but "he did not make me, someone else did."
The court found that Julie's paternity declaration was unclear and Edgar's paternity declaration was credible. The court determined Edgar was Lucy's presumed father under section 7611, subdivision (d), and ordered the Agency to complete a full assessment of Edgar for placement and custody.

In June 2007 a few days after G.E.'s birth, the San Diego County Health and Human Services Agency (the Agency) filed a juvenile dependency petition and she was detained in foster care. According to the jurisdictional and dispositional report filed on July 25, G.E.'s mother, C.E., said she had Native American heritage through the Cherokee tribes. Additionally, the maternal grandmother said they might have Native American heritage and would forward the information to the social worker once she had contacted her relatives.
The dispositional judgment is reversed. This case is remanded to the juvenile court, with directions to conduct an ICWA inquiry, direct the Agency to give ICWA notice to any applicable Indian entities, and proceed in conformance with ICWA. If, after inquiry and notice, no tribe indicates G.E. is an Indian child, the court shall reinstate the judgment. The remittitur is to issue forthwith.