CA Unpub Decisions

Defendant and appellant John Anthony Garcia appeals after he was convicted of multiple sex offenses. He contends that the admission of other crimes evidence under Evidence Code section 1108 violated his right to due process of law by lessening the prosecutions burden of proving each element of the offense beyond a reasonable doubt. He further contends that the trial court erred in certain aspects of his sentence. Court modify the sentence and otherwise affirm.

Defendant and appellant Richard F. Lunetta appeals from civil harassment restraining orders entered against him in two cases which have been consolidated on appeal. Lunetta contends the trial court erred in (1) denying Lunetta the right to cross-examine witnesses (2) proceeding on plaintiffs applications for restraining orders after ruling that the identical allegations of 30 or so related applications failed to give Lunetta fair and adequate notice of the claims against him; (3) hearing and deciding, over Lunettas objection, supplemental claims and allegations made in plaintiffs hearing briefs that had not been served on Lunetta; and (4) enjoining Lunetta from attending meetings of a homeowners association because the order is aimed at preventing disruption of the meetings rather than at protecting an individual from personal harassment. The trial court is directed to modify the injunction with respect to the Petroffs consistent with this opinion. As so modified, the injunction with respect to the Petroffs is affirmed.

T.P. (father) appeals from the disposition entered after the juvenile court declared his son, C.P., born in September 1996, a dependent of the juvenile court and removed him from fathers custody. Father claims the evidence is insufficient to support the juvenile courts jurisdiction finding that C.P. is a child described in Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse), and also is insufficient to support the disposition order under section 361, subdivision, (c)(1) removing C.P. from fathers custody. Court disagree, and therefore affirm the disposition order.

Petitioner Latoya C. (mother) has filed a petition for extraordinary writ under California Rules of Court, rule 8.452, seeking immediate review of an order of the juvenile court setting a dependency case for a selection and implementation hearing. (Welf. & Inst. Code, 366.26.) Court deny the writ petition.

Appellants, David Burdg and Erica Burdg, filed an unlawful detainer action against respondents, Carlos M. Gonzales and Ernestina Valladarez, alleging that respondents had failed to pay rent due under a monthly rental agreement. Respondents, however, denied the existence of both the monthly rental agreement and a landlord-tenant relationship. At trial, appellants moved in limine to exclude evidence regarding title to the premises. Although the trial court granted this motion, the court nevertheless permitted evidence regarding the authenticity of the monthly rental agreement and respondents belief that they were purchasing the house as background for the possession issue. Appellants contend the trial court prejudicially erred and thus the jury verdict in respondents favor must be reversed. Appellants further argue that the attorney fee award was unreasonable. As discussed below, the disputed evidence was relevant for the determination of whether respondents should maintain possession of the premises. Thus, the trial court did not err in admitting such evidence. Further, the amount of attorney fees awarded did not constitute an abuse of the trial courts discretion. Accordingly, the judgment be affirmed.

Following a jury trial, defendant James Conriquez, Jr. was convicted of being a prison inmate in possession of a weapon, to wit, a dirk, dagger, or sharp instrument (Pen. Code, 4502, subd. (a)).[1] The court found true the allegations that defendant had suffered two qualifying prior convictions for purposes of the three strikes law. Defendant was sentenced to a total prison term of 25 years to life, which was ordered to run consecutively with the eight-year term he was already serving at the time of the current offense. On appeal, defendant contends: (1) statements he made to a correctional officer were improperly admitted in violation of his constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) there was prejudicial prosecutorial misconduct during closing argument; and (3) the cumulative impact of these errors deprived him of a fair trial. Court reject defendants contentions and affirm the judgment.

Monique K. appeals from an order terminating her parental rights (Welf. & Inst. Code, 366.26) to her daughter Andrea. Appellant contends she maintained a parent/child relationship with Andrea such that the court should have found termination was not in Andreas best interests. ( 366.26, subd. (c)(1)(A).) On review, Court affirm.

Over the period 2002 through 2006, Milton Bieber had a number of complaints and grievances against his landlord, Casa Pacifica Senior Apartments, and its managers, particularly Ruben Carrillo (collectively, Casa Pacifica). In May 2006, Bieber filed this lawsuit, asserting a single cause of action for intentional infliction of emotional distress based upon those accumulated grievances. After giving Bieber a chance to amend, the trial court entered a judgment of dismissal after sustaining Casa Pacificas demurrer. On appeal, Bieber also suggests that the facts alleged in his complaint could support a cause of action for violation of section 1942.5, which prevents landlords from retaliating against tenants who complain about the landlords conduct to an appropriate agency. The judgment is reversed to allow appellant to amend his complaint if he so chooses.

Hugh S. appeals from the termination of parental rights to his daughter, Antonia S. He complains he was denied due process in earlier proceedings that are no longer subject to appellate review. He also challenges the juvenile courts refusal to find that Antonias relationships with him and with her half siblings were so strong that termination of parental rights would be detrimental to her. Court affirm the judgment.

The mother, Georgina T., contends the juvenile court erred when it denied her a hearing on her petition brought under Welfare and Institutions Code section 388. (All further statutory references are to the Welfare and Institutions Code.) Court affirm.

On January 6, 2006, Jose Luis Rivera Villeda was convicted by a jury of the 1999 forcible rape, robbery and kidnapping of Jane Doe and was sentenced to state prison for 41 years to life. His sole challenge on appeal is to his sentence. He contends imposition of the upper term and consecutive sentences denied him his rights under the Sixth Amendment as explicated in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). Between the filing of respondents brief and appellants reply brief, the California Supreme Court issued its opinions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), addressing these issues and the impact of Cunningham upon them. Appellant concedes we are bound by Black II and Sandoval and that the arguments he makes have been rejected by the California Supreme Court in those cases. Appellant raises the issues to preserve them for further federal review. Court affirm.

Gavin S. was detained by the local social services agency when A.C. (Father), with whom Gavin was living, was arrested for narcotics offenses. At the time, Gavin was recovering from cancer treatment, yet the police found him unkempt and hungry. During the next two years, Gavin lived with a foster parent. For the entire period, Father struggled with unemployment, mental illness, drug addiction, and homelessness. He visited frequently with Gavin but played no other role in his life. R.S. (Mother) lived with family members and visited Gavin only irregularly.
The juvenile court eventually terminated parental rights and permitted Gavin to be adopted by his foster mother. Father and Mother contend that the juvenile court should have invoked the parental relationship exception and authorized only a guardianship, rather than an adoption. Court affirm.

By petition for writ of mandate, petitioner Curtis Renee Jackson challenged the denial of his motion for appointment of counsel under Penal Code section 1405, subdivision (b). The trial court denied the motion because Petitioner is not in custody as a result of the conviction in this case. By letter, we requested informal opposition from the real party in interest. In their opposition, the People concede that the trial court erred in denying the motion.
As Petitioner meets the predicate requirements in subdivision (a) and has satisfied the requirements under subdivision (b)(1), the trial court should have granted the motion for counsel. Let a peremptory writ of mandate issue commanding respondent to grant Petitioners motion for appointment of counsel under Penal Code section 1405, subdivision (b). Our decision is final as to this court immediately. (See Cal. Rules of Court, rule 8.264(b)(3).)

A jury found in favor of respondent Cal-City Construction, Inc. (Cal-City) in its legal malpractice action against appellant Wilson, Elser, Moskowitz, Edelman & Dicker, LLP (Wilson Elser). The evidence established that Wilson Elser was retained to represent Cal-City after the Los Angeles Unified School District (District) removed Cal-City on a construction project known as Belmont 2 and refused to make progress payments on a construction project known as Belmont 3. Wilson Elser advised Cal-City to walk off Belmont 3. Cal-City walked off and sued the District for breaching its contracts on both projects. Just prior to trial, Wilson Elser advised Cal-City that it should never have walked off Belmont 3, and that because it did so, its only option was to settle on unfavorable terms. Cal-City obtained a judgment against Wilson Elser for $2,478,500 plus costs. The award included $941,000 in damages related to the adverse settlement with the District, and $1,722,500 for lost future profits on the theory that Wilson Elsers negligence caused Cal-City to lose bonding capacity and forfeit projects that it was thereby prevented from bidding on. Wilson Elser moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, for partial JNOV regarding lost future profits. The motion was denied. Wilson Elser now appeals the judgment and the denial of the motion for JNOV and argues: (1) Cal-City failed to offer evidence that it would have obtained a better result in the underlying disputes but for Wilson Elsers negligence; and (2) Cal-Citys award for lost future profits was based on speculative evidence. We conclude that substantial evidence supports a finding that Wilson Elser caused Cal-City damage in connection with the underlying disputes, and that the award of $941,000 must stand. However, we also conclude that the trial court should have granted a partial JNOV as to lost future profits. To recover, Cal-City had to prove what it lost in net profits, but its expert put on evidence only of lost gross profits, and the experts testimony was otherwise speculative. Court affirm the judgment, but only after modifying it to remove the award of lost future profits.