CA Unpub Decisions

The original appellants in this appeal were Pegasus Wireless Corporation and Jasper Knabb. They appealed from the trial courts preliminary injunction directing Pegasus to turn over certain stock certificates located in its Florida offices in response to a sheriffs levy on the certificates in Alameda County under a right to attach order and writ of attachment issued in Chich-Hsing Alex Tsaos favor against Pegasus. They also appealed from the trial courts order decreasing the amount of the attachment bond from $1,000,000 to $25,000. On appeal and below, Pegasus and Knabb were jointly represented. But before their opening brief was due, their counsel filed a motion to withdraw, which was later granted.[1] The order permitting counsels withdrawal notified Pegasus that as a corporation, it could not represent itself and that if it did not obtain legal counsel to represent it in this court within 30 days thereof, its appeal would be dismissed. Having failed to secure counsel within that period, Pegasuss appeal was later dismissed, leaving only Knabbs appeal for disposition.
After our review of the record, Court conclude that Knabb lacks standing to appeal from the orders as he is not a party aggrieved thereby. The orders directed only Pegasus to turn over the share certificates and related to a right to attach order that affected only Pegasuss corporate property. Knabbs appeal is accordingly dismissed.

Appellant Preferred Energy Services, Inc. (PES) sued respondents Infoseek Corporation, Go.com, and Walt Disney Internet Group (hereafter jointly Infoseek) for breach of contract. The parties arbitrated their dispute and the arbitrator issued an award in favor of PES. PES petitioned the court to confirm the award and requested postarbitration, prejudgment interest; postaward attorney fees; and postaward costs. The trial court confirmed the award, but denied the request for interest, attorney fees, and costs.
On appeal, PES contends the court erred when it denied its requests for postaward, prejudgment interest; postaward attorney fees; and postaward costs. Court agree and reverse the judgment. Court also remand the matter to the trial court to determine the amount of interest, attorney fees, and costs due.

Andrea Caballero appeals from the trial courts sua sponte reconsideration and vacation of an order appointing her as successor trustee of the Jess G. Caballero Family Trust (the trust). The trust expressly listed the order of successor trustees, placing Yolanda Jasso first, Andrea Caballero second, and Marlene Sanchez, all daughters of the settlor, third. Upon its reconsideration of the order, the court vacated it and denied Andreas[1] petition to be appointed as successor trustee, reaffirming a prior order issued by a different judge that had removed the initial successor trustee, Yolanda, and had in effect bypassed Andreas appointment as successor trustee in favor of Marlene. Andrea contends that the trial court erred in acting as it did because it lacked jurisdiction to reconsider its prior order. Court conclude that the trial court had the power to sua sponte reconsider its prior ruling. But it exercised this power without informing the parties that it was contemplating reconsideration on its own motion, without soliciting briefing, and without holding a hearing, all of which are required by our high courts holding in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 (Le Francois). Court nevertheless conclude that on this record, this error was not prejudicial and Court accordingly affirm the trial courts order.

Appellant Jairo Flores appeals from a judgment following a jury verdict convicting him of assault by means of force likely to produce great bodily injury (Pen. Code,[1] 245, subd. (a)(1)); false imprisonment by violence, menace, fraud, or deceit ( 236); willful infliction of corporal injury resulting in a traumatic condition on a cohabitant ( 273.5, subd. (a)); and misdemeanor violation of a restraining order ( 273.6, subd. (a)). Appellant challenges the convictions claiming the trial court erred in: (1) failing to modify CALCRIM No. 1240 to instruct the jury that restraining a person to prevent a suicide attempt is a defense to false imprisonment and (2) failing to stay the sentences on counts two and three under section 654. Court affirm.

Defendant was convicted following a jury trial of possession of methamphetamine for sale (Health & Saf. Code, 11378), unlawful transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)), and possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, 11370.1, subd. (a)). The jury also found that during commission of the offenses defendant was personally armed with a firearm (Pen. Code, 12022, subds. (a)(1), (c)).[1] He was denied probation by the trial court and sentenced to an aggregate term of six years in state prison. In this appeal, defendant objects to the trial courts repetition of a jury instruction on joint and constructive possession, and makes two claims of sentencing error: the failure of the trial court to order an examination for purposes of a commitment to a treatment program under section 1170.9; and the admission and consideration of the competency report of an appointed psychiatrist. Court find that the repetition of the jury instruction was not error. We further find that defendant was not qualified for sentencing under section 1170.9, and the admission of the competency report was not prejudicial to defendant. Court therefore affirm the judgment.

Defendant Marvin James Hatch appeals from a judgment convicting him of one count of possession for sale of cocaine base and sentencing him to seven years in prison.[1] He contends that the court erred by failing to give a limiting instruction regarding the proper use of hearsay evidence relied on by an expert witness and that the prosecutor committed misconduct in the closing argument. Court affirm.

This appeal arises out of a settlement agreement the parties entered into to resolve, on a classwide basis but prior to class certification, five class action lawsuits that were pending in the same court alleging violations of wage and hour law in respondent T-Mobile U.S.A., Inc.s (T-Mobile) California-based retail stores. The superior court denied a motion by appellants to enforce payment of several claims found by the third party claims administrator to be invalid. Appellants contend that the court applied the wrong legal standard in refusing to order T-Mobile to pay the claims and that the claims should have been paid because the claimants established good cause and/or excusable neglect. Court affirm.

Virginia Fuller appeals in propria persona from a judgment entered by the Alameda County Superior Court following the courts grant of summary judgment in favor of attorneys Sharon Caesar and Sandra Smith and against plaintiffs Fuller and her company C & V Caring Friends, Inc. in plaintiffs legal malpractice action.[1] Fuller had asserted below that Caesar had committed malpractice by forcing her into an inadequate settlement agreement with the defendants in the underlying action and by dismissing plaintiffs action without authorization and contrary to Fullers express orders. On appeal, Fuller contends the trial court erred in granting summary judgment for Caesar. Fuller argues: (1) that Ceasar failed to establish on summary judgment/adjudication that Fullers underlying case in which the alleged malpractice occurred had no merit; (2) that neither collateral estoppel nor res judicata established that the underlying case had no merit because the issue of merit was not fully litigated in the underlying action; and (3) that Fuller had demonstrated both damages and that she would prevail at trial.

Appellant Jhomari Cory Sutton appeals a judgment of conviction following a plea of no contest. His challenge is to the order for direct victim restitution in the amount of $98,719.15. Court conclude appellant has waived any objection to the amount of direct victim restitution and accordingly affirm the judgment.

Appellant Ronald Daley appeals the probate courts order approving the fourth accounting and status report filed by the administrator of his late mothers estate. Court affirm.

Gregory Allen Taggart appeals from a finding that he violated the terms of his probation and the imposition of a previously suspended state prison sentence. His court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

Charles M. appeals from a dispositional order adjudging him a ward of the court and removing him from his parents custody after he admitted to personally using a firearm to commit an assault. He contends that the matter should be remanded for a new disposition because the court abused its discretion in designating his theoretical maximum term of physical confinement in secure custody at 14 years. Court disagree, and accordingly, affirm the dispositional order.

Ernesto O. Urvano appeals from a final judgment entered after a trial at which a jury convicted him of one count of second degree vehicular burglary. His court-appointed counsel has filed a brief raising no issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
The judgment and sentence imposed are affirmed.

David Zvonko Skuljan appeals from a judgment entered after the trial court revoked his probation. He contends the trial court abused its discretion when it revoked his probation and sentenced him to prison. Court disagree and affirm.