CA Unpub Decisions

This appeal presents two issues: Did the trial court abuse its discretion when it denied a petition to certify a collective action pursuant to the Fair Labor Standards Act (29 U.S.C. 216(b))? If so, did the denial of certification offend due process? Because Court conclude that the order is not appealable, however, Court need not reach either issue.

Plaintiff Barbara E. Lane appeals from a judgment of the Marin County Superior Court entered pursuant to a stipulation to judgment entered into by other parties to a cross-complaint to her action to quiet title to an easement running across her property. She contends that the trial court abused its discretion in dismissing her first amended complaint as a terminating sanction due to her failure to participate in the action. Respondents William and Nancy Stewart, Steven and Liza Andre and Richard T. Thomas (parties to the stipulated judgment) contend that Lanes appeal is untimely. Lane contends: (1) that the appeal is timely; (2) that the trial court abused its discretion in dismissing her first amended complaint as a sanction for her nonappearance and refusal to participate; (3) that she was not given adequate notice of the pending dismissal sanction; and (4) that the stipulation to judgment on the cross-complaint erroneously refers to the dismissal of her first amended complaint as being with prejudice, when in fact it was dismissed without prejudice. (Respondents concede the judgment erroneously referenced the dismissal as with prejudice, but contend that the error does not require reversal of the judgment.)
Court conclude the appeal is timely and shall affirm the judgment.

Appellant Lynda Beck (appellant) appeals from the trial court order granting the motion to quash of respondent Lytton Band of Pomo Indians (the Tribe). She contends that the trial court erred in concluding that, under the doctrine of Indian sovereign immunity, it did not have subject matter jurisdiction over the Tribe. Court disagree and, accordingly, affirm the trial court.

Plaintiff Rudy P. Rodriguez, while working as a Transportation Security Administration (TSA) airport screener, injured his back when he carried a large and heavy duffel bag from the X-ray screening machine to a nearby table. The bags owner had arrived at the ticket counter too late to check baggage for his flight, and he was told by an employee of the airline, defendant JetBlue Airways Corporation (JetBlue), to carry his luggage through TSA screening and check the large bag at the gate. Plaintiff sued, contending that JetBlue was negligent in directing such a heavy bag through TSA screening. The trial court granted summary judgment against plaintiff on the ground that, as a part of his employment, plaintiff had assumed the risk that heavy luggage would be sent through TSA screening. Court affirm.

Defendant attorney William M. Gwire in propria persona appeals from an order denying his petition to compel arbitration of legal malpractice and other causes of action brought herein by his former client, plaintiff Steven M. Krantz. The court denied the petition because of the potential for inconsistent rulings in the arbitration and this court case. Court conclude that the stated ground for the order is untenable, and therefore reverse.

Appellant appeals from a judgment of the Alameda County Juvenile Court adjudging him to be a ward of the court and placing him in Camp Wilmont Sweeny. That judgment was entered after jurisdictional and dispositional hearings in which it was found that appellant, then age 17, had committed robbery in violation of Penal Code section 211[1]and, in the course of which, used a deadly weapon, namely a knife. (See Pen. Code, 12022, subd. (b).) Appellant has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 asking this court to examine the record and determine if there are any issues deserving of further briefing and consideration by this court. Court have examined the record, find no such issues, and hence affirm.

Wilfredo Arias Cervantes appeals a judgment following his conviction for possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)) and possession of an injection/ingestion device (Health & Saf. Code, 11364). Court conclude that the settled statement is an adequate record for this appeal and substantial evidence supports the judgment. Court affirm.

John Catalano appeals from a judgment of dissolution of his marriage with respondent Arlene Roepke Catalano incorporating the courts determinations after a bench trial regarding the ownership of Montessori Childrens World, a childrens school located in Las Vegas, Nevada (Sunset school), and another Montessori school located in Minden, Nevada (Minden school). John claimed those businesses were his sole and separate property under a premarital agreement with Arlene.[1] Among other things, the court found that (1) the Sunset school was owned in an equal three-party partnership among John, Arlene, and Johns adult daughter, respondent Lori Bossy; and (2) the Minden School investment was the community property of John and Arlene. Numerous witnesses testified at trial, including John, Arlene, Lori, a seller of the Sunset school and a co-investor in the Minden school, and the evidence was in sharp conflict. The court expressly found that Johns testimony was completely not credible. John contends the trial court erred by considering extrinsic evidence to explain the terms of the premarital agreement and the purchase agreements for the Sunset school. He further contends the court had no legal basis to award Lori a one third interest in the Sunset school because she did not pay the capital necessary to fund her ownership interest. Court find no error and affirm.

A beverage distributor in St. Maarten sued a California company, alleging it had a contract for the exclusive right to distribute an energy drink in St. Maarten and adjacent islands, and that the company improperly terminated the contract without good cause. The trial court correctly granted a motion for nonsuit at the close of the distributors case, as there was no evidence of an agreement with the California company requiring good cause for the distributors termination. Nor was there any error in the trial courts grant of summary adjudication of the distributors claims of fraud and intentional infliction of emotional distress in connection with the distributors termination. The judgment is affirmed.

Abel Banuelos appeals from the judgment and order entered following a retrial of the allegations concerning a 1992 prior conviction of a Penal Code section 245, subdivision (a)(1) assault.[1] (See People v. Banuelos (2005) 130 Cal.App.4th 601, 608 (Banuelos I).) The trial court again found that appellant's 1992 conviction was a serious felony within the meaning of sections 667, subdivision (a) and a "strike" pursuant to section 1170.12, and sentenced him to 11 years in state prison. Appellant contends that the record was insufficient to demonstrate that the prior conviction qualified as a serious felony and a strike, and that he was denied effective assistance of counsel because trial counsel failed to object to the only inadmissible evidence upon which the trial court based its findings. He also petitions for a writ of habeas corpus seeking an order vacating the judgment on the ground of ineffective assistance of counsel. On October 11, 2007, this court ordered that the appeal and the writ of habeas corpus would be considered together. By separate order, we deny the writ petition. Court affirm the judgment.

Gabriel Griffin was convicted of one count of first degree murder and one count of assault with a firearm, with allegations that he had personally and intentionally discharged a firearm and committed the crimes for the benefit of a criminal street gang. (Pen. Code, 187, subd. (a), 245, subd. (a)(2), 12022.53, subds. (b)-(d), 12022.5, subd. (a)(1), 186.22, subd. (b)(1)(C)).[1] He was sentenced to state prison for an aggregate term of 67 years to life. Griffin appeals, challenging (I) the trial courts denial of his motion to suppress evidence obtained during a probationary search of his bedroom, (II) the admission of expert opinion, and (III) the sentences imposed for the firearm enhancements. Court reject his claims of error and affirm the judgment.

Julio Cesar Guzman Yau appeals from the judgment following his convictions for murder, attempted murder, and assault with a deadly weapon. Court affirm.

A juvenile wardship petition was filed on January 31, 2006, alleging that appellant, Edgar G., was a person described by the provisions of Welfare and Institutions Code section 602, having allegedly committed the offense of first degree burglary. (Pen. Code, 459.)[1] The juvenile court found true the allegation and sustained the petition. Appellant moved for a new trial, and his motion was denied. Appellant was declared a ward of the court, placed on probation, and returned to the custody of his parents. The juvenile court declared the offense to be a felony. Appellant was ordered to pay a $200 state restitution fine and victim restitution in an amount to be determined. Appellant argues (1) that there was insufficient evidence to support the juvenile court's finding that he committed a burglary, and (2) that the court failed to declare whether the offense was burglary of the first or second degree. Court affirm.

Mario Steven Garcia appeals the judgment following his guilty plea to seven counts of making criminal threats. (Pen. Code, 422.)[1] The negotiated plea agreement provided for an 11-year maximum sentence and the dismissal of two offenses. The trial court sentenced Garcia to four years eight months in prison. Garcia contends that section 654 permits punishment for only one criminal threat offense because all of the threats were made in a single telephone call with a single criminal objective. Court dismiss the appeal because Garcia did not obtain a certificate of probable cause. ( 1237.5.)