CA Unpub Decisions

Petitioner Julie M., mother of 11-year-old Sophia B., filed a petition for extraordinary writ and related request for a stay from the juvenile courts order setting a Welfare and Institutions Code section 366.26 hearing for March 20, 2008.[1] Petitioner argues that the juvenile court erred by: (1) receiving an ex-parte, hearsay letter from Sophias therapist at the hearing, where the letter was not part of the social workers report, was not entered into evidence, and where the therapist was not present for cross-examination; (2) delegating power over whether or not visitation would occur to the social worker and to the child; (3) denying petitioners request that the suspension of all contact between her and Sophia be set aside and visitation resumed and consequently denying her the opportunity to come within the exception to adoptive placement expressly permitted by section 366.26, subdivision (c)(1)(B)(i) [former subdivision (c)(1)(A)]. Court affirm the order.

This is a consolidated appeal of several rulings concerning a first amended complaint for malicious prosecution, process abuse, and civil conspiracy brought by plaintiff, Richard Y. Kim, D.D.S., against a number of defendants after a jury returned a verdict in his favor in an underlying dental malpractice action. Plaintiff brought this current action against a former patient, John. C. Haedrich, and numerous other defendants. Plaintiff asserted defendants conspired with each other to bring the underlying dental malpractice action against him based on false and fabricated evidence. Plaintiff appeals from an order granting special motions to strike pursuant to Code of Civil Procedure section 425.16, claims against Mr. Haedrich and an attorney, Robert J. McCulloch. Mr. McCulloch was Mr. Haedrichs attorney in the underlying dental malpractice action. Plaintiff also appeals from a judgment entered after demurrers were sustained without leave to amend the first amended complaint. The demurrers were brought by defendants, Alexander Farnoosh, D.D.S., Ahmad Fahid, D.D.S., Parviz Azar Mehr, D.D.S., Han Young Park Azar Mehr, D.D.S. and Michael O. Hamada, D.D.S. Court affirm the rulings in all respects.

Appellants Kimblyn Creese and Phyllis Parker (collectively Creese) appeal from an order denying class certification to a proposed class of underwriters in an action against respondent Washington Mutual Bank (Bank) for, inter alia, failing to pay them overtime, give them meal and rest breaks, and give them itemized wage statements. Creese alleged, in part, that Bank misclassified the underwriters as administrative employees exempt from the relevant labor laws when in fact they are nonexempt because they were employed in a production capacity, and they did not exercise discretion or independent judgment. The trial court determined that common questions did not predominate as to whether the underwriters exercised discretion and independent judgment, and that class certification would not be advantageous to the judicial process and the litigants. Creese contends that the trial court utilized improper legal criteria and erroneous legal assumptions, and that it misapplied the test articulated in Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805 (Bell I). As a result, Creese contends that the ruling was not supported by substantial evidence, and that the trial court prematurely ruled on the merits instead of determining whether she established the requisites for class certification. Court find no error and affirm.

Plaintiff and appellant Jessie Prieto Nava (Nava) brought an action against defendant and respondent Power Chevrolet El Monte (Power Chevrolet)[1]for injuries she allegedly sustained when she slipped on water and fell on Power Chevrolets premises. A jury returned a verdict in favor of Power Chevrolet. On appeal, Nava contends the trial court erred when it permitted Power Chevrolet to amend its witness list on the eve of trial, when it refused to continue the trial after allowing the amendment to the witness list, when it refused to order Power Chevrolet to disclose the identity of the employee who was misting or afterwashing Power Chevrolets cars, and when it refused to impose an issue sanction for Power Chevrolets refusal to identify which of its employees were on the premises when Nava was injured. Court affirm.

Appellant Iron Mountain, Inc. (Iron Mountain) appeals from a trial court order denying its request for attorney fees. We conclude that the trial court did not err in finding that Iron Mountain is not entitled to attorney fees. It was not a party to the written contract that contains an attorney fee provision. Moreover, the trial court did not abuse its discretion in refusing to apply the doctrine of judicial admission against respondent Kirtland & Packard (K&P). Accordingly, Court affirm.

Under Code of Civil Procedure section 1281.2, the trial court denied a petition to compel arbitration. That section gives the court the discretion to deny enforcement of an arbitration agreement, and to order all parties to litigate in a single action, if the court determines that (1) a party to the arbitration agreement is also a party to a pending court case with a third party arising out of the same transaction, and (2) there is a possibility of conflicting rulings on a common issue of law or fact. Court find no abuse of discretion in the trial courts decision. We also reject the contention that the Federal Arbitration Act prevents the trial court from exercising its discretion under Code of Civil Procedure section 1281.2. The order is affirmed.

Karyl Onell Clarke (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of making a criminal threat (Pen. Code, 422; count 3),[1]with a court finding that defendant had a juvenile adjudication of a prior serious felony of robbery that qualified him for sentencing pursuant to the three strikes law ( 667, subds. (b)-(i); 1170.12). The trial court sentenced him to a six-year term in state prison. He contends that (1) his conviction must be reversed because [the trial court] violate[d] his rights to a unanimous verdict, fair notice, and proof beyond a reasonable doubt; (2) the trial evidence is insufficient to support his conviction of making a criminal threat; (3) the imposition of an upper term at sentencing constitutes Cunningham error (Cunningham v. California (2007) 562 U.S. ___ [127 S.Ct. 856]); (4) the trial court improperly considered his prior commitment to the California Youth Authority in determining that he had served a prior prison term within the meaning of California Rules of Court, rule 4.421(B)(3); and (5) the trial court erred by finding that his prior juvenile adjudication of robbery constituted a strike within the meaning of the three strikes law. Court conclude that the trial court erred by failing to charge the jury with a unanimity instruction, and the error is prejudicial. Accordingly, Court order the judgment reversed.

Michael OBryant Hands sold rock cocaine to an undercover police officer in the Skid Row area of Los Angeles. Following a jury trial he was convicted of selling a controlled substance. He was sentenced the four year middle term in state prison. On appeal Hands argues that remand for resentencing is necessary. Court affirm.

This appeal follows a final judgment granting a special motion to strike pursuant to Code of Civil Procedure section 425.16 (section 425.16) in favor of Garry Moses (respondent), dismissing appellant Parviz Galdjie, M.D.s (appellant) complaint with prejudice, and finding respondent entitled to attorney fees and costs. Following the entry of judgment, appellant filed a motion to vacate the judgment, which the trial court denied. Appellant appeals from the trial courts order denying his motion to vacate the judgment, bringing this case before us for a third time.
Appellants sole contention on appeal is that the trial court erred in denying his motion to vacate the judgment because the judgment was obtained through extrinsic fraud. The extrinsic fraud, appellant contends, was perjury committed by respondent in his declaration in support of the special motion to strike.

Defendant and appellant, James Lovell Flennory, appeals from the judgment entered following his conviction, by jury trial, for two counts of robbery, with a prior serious felony conviction finding and prior prison term findings (Pen. Code, 211, 667, subds. (a)-(i), 667.5). Sentenced to state prison for 14 years, he claims there was trial and sentencing error.
The judgment is affirmed.

Petitioners Committee to Save the Hollywoodland Specific Plan and Hollywood Heritage (collectively the Committee) appeal judgment on their petition for peremptory writ of mandate. Petitioners sought to compel the City of Los Angeles (City) to rescind its permit for a wooden fence that a homeowner had constructed atop one of the historic granite walls of Hollywoodland. The trial court denied the petition, finding the City properly relied on an exception to the Hollywoodland Specific Plan (HSP) and a categorical exemption under the California Environmental Quality Act (CEQA) to approve the fence. We affirm in part and reverse in part, concluding that although under the terms of the HSP and the Municipal Code, the City properly granted an exception to the HSP, under CEQA, the City improperly granted an exemption.

Defendant and appellant Alberto Daniel Gonzalez appeals from the judgment entered following a jury trial that resulted in his conviction of felony assault. He contends reversal is required because the jury returned guilty verdicts on both the charged offense and a lesser offense. Court affirm.

Walton was arrested after police conducted a narcotics surveillance of a residence from which illegal drugs were reportedly being sold. Walton was charged by information with possession for sale of cocaine base (Health & Saf. Code, 11351.5) (count 1) and possession of ammunition (Pen. Code, 12316, subd. (b)(1)) (count 2). The information specially alleged Walton had suffered one prior serious or violent felony conviction (robbery) within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and he had served three separate prison terms for felonies (Pen. Code, 667.5, subd. (b)). The trial court granted Waltons motion for discovery under Evidence Code sections 1043 and 1045 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 involving the arresting officers, conducted an in camera review, and ordered the disclosure of certain Pitchess material. The judgment is affirmed.

Following the denial of his motion to suppress illegally seized evidence, Eduardo Garcia pleaded no contest to one count of possession of methamphetamine for sale. On appeal, Garcia contends the evidence seized during a warrantless search of his person and his car was the fruit of an illegal detention and should have been suppressed. Court affirm.