CA Unpub Decisions

Defendant and appellant Paulina R. (mother) is the natural mother of Cesar R. and Alize R. The juvenile court terminated mothers parental rights as to Alize. Mother argues that the court erred in failing to find that either the beneficial parental relationship exception or the sibling relationship exception applied to prevent the termination of her parental rights. Court affirm.

Around 1:00 a.m. on June 16, 2006, Lisa Lopez was awakened by a banging on the front door of the apartment where she was spending the night. Three women who are related to Lopezs former boyfriend, Ace Vargas, were standing outside the apartment. They wanted Lopez to come outside. Lopez threatened to call the police and they left. Lopez called the police. A police officer reported to the scene. He told Lopez to lock the apartment doors and to call the police if the women returned. Lopez went back to sleep. The judgment is affirmed.

On September 20, 2004, appellant, Benus C. Amirfar, filed a complaint for personal injury against respondents Paul Tosti and TNT Towing. Appellant alleged that on January 7, 2003, Tostis dog bit him on the leg. The matter was set for trial on April 3, 2007. When appellant did not appear, the court dismissed the action pursuant to Code of Civil Procedure section 581, subdivision (b)(5), and California Rules of Court, rule 10.910(a). The failure of a party to appear at trial in and of itself justifies the trial courts order of dismissal. ( 581, subd. (b)(5); Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1012-1013.) Further, under California Rules of Court, rule 10.910(a), once a case has been transferred to a trial department, as this case was, and trial does not commence, the case may be dismissed. (Hurtado v. Western Medical Center (1990) 222 Cal.App.3d 1198, 1204.) The order of dismissal will be reversed on appeal only upon a showing that the trial court abused its discretion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The judgment is affirmed.

Freddy Alfredo Curiel appeals from a judgment after a jury convicted him of special circumstance first degree murder and street terrorism, and found true allegations he committed the murder for the benefit of a criminal street gang and he was a gang member who vicariously discharged a firearm causing death. Curiel argues: (1) the trial court erroneously permitted the district attorney to amend the information to include a previously dismissed street terrorism enhancement; (2) the court erroneously denied his motion for acquittal on one of two murder counts; (3) the court erroneously admitted three pieces of evidence; (4) there were two instructional errors; (5) the special circumstance applies only to actual killers and not aiders and abettors, and the finding was supported by insufficient evidence; (6) the courts imposition of a security fee violated federal and state ex post facto principles and Penal Code section 3; and (7) he was prejudiced by the cumulative effect of these errors. Although we agree with one of Curiels evidentiary claims and one of his instructional error claims, Court conclude he was not prejudiced. None of his other contentions have merit, and we affirm the judgment.

Cross-defendant A.J. West, LLC (West), appeals from summary judgments in favor of cross-complainants City of Lake Forest (City) and Willdan on their cross-complaints for indemnity, arising out of their settlements of a wrongful death action resulting from an automobile accident occurring in the construction zone of a West development project. West contends the court erred in interpreting an indemnity provision to cover the active negligence of City and Willdan. We determine that there is a material issue of fact as to whether certain acts or omissions of City and Willdan caused the accident. If so, those acts and omissions do not fall within the language of the indemnity provision. Therefore Court reverse the judgments and the postjudgment orders awarding attorney fees and costs to City and Willdan.

Appellant Cheryl H. is the mother of 12-year-old K.L., a dependent child of the juvenile court. The juvenile court ordered a legal guardianship for K.L. at the permanency planning hearing. Mother contends the guardianship was imposed in violation of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA). Court agree and reverse. When it ordered the guardianship, the juvenile court failed to make the required detriment finding, based on expert testimony, that Mothers continued custody of K.L. would result in serious physical or emotional damage.

Jeffery Walker appeals from a judgment entered upon a jury verdict finding him guilty of pandering (Pen. Code,[1] 266i, subd. (a)(2)). In a bifurcated proceeding, the trial court found that defendant suffered a prior strike conviction ( 667, subds. (d) & (e)). He contends that the evidence is insufficient to support the verdict; that the court committed instructional, evidentiary and sentencing errors; and that the prosecutor committed misconduct. Court affirm.

Plaintiff Marvin Remmich brought this action in 2003 to enforce a 1993 default judgment awarding him $26,340 in damages. The original action began as an unlawful detainer action seeking possession of an office. Defendant Mario M.S.B. Feusier answered the unlawful detainer complaint, but vacated the office. Remmich leased the office to new tenants, and also amended the complaint to state a new cause of action, seeking different, and substantially greater, damages than in the unlawful detainer complaint. Feusier never answered the amended complaint, and a default judgment was entered. Some 10 years later the within action was brought, seeking to enforce the default judgment. The trial court found that Feusier had never been served with the amended complaint in the original action, and therefore concluded that the default judgment was void and unenforceable. The trial court also awarded Feusier attorney fees as the prevailing party in the enforcement action. Remmich filed two separate appeals. In the first appeal, which is from the September 14, 2006 judgment in Feusiers favor, Remmich makes three arguments: (1) the amended complaint was validly served; (2) alternatively, even if service was invalid, the default judgment was not void, merely voidable, and the time for setting it aside has passed; and (3) judicial estoppel bars Feusier from contesting service of process of the amended complaint. In the second appeal, which is from the October 4, 2006 order awarding Feusier attorney fees, Remmich argues that neither the attorney fees clause in the lease nor any statute provided the trial court with a legal basis to award fees. On our own motion, we have consolidated Remmichs appeals. (See Sampson v. Sapoznik (1953) 117 Cal.App.2d 607, 609.) We conclude that none of Remmichs arguments has merit, and affirm both the judgment and the order awarding attorney fees. The September 14, 2006 judgment and the October 4, 2006 order awarding attorney fees are affirmed.

Katherine Roberts and Trees Not Cars (collectively Trees) appeal an order denying their motion for attorney fees. Court affirm.

Julio C. (appellant) appeals an order declaring him a ward of the juvenile court (Welf. & Inst. Code, 707) after the court found he had committed robbery (Pen. Code, 211) (count 1) and assault with a deadly weapon, to wit: a knife (Pen. Code, 245, subd. (a)(1)) (count 2). The jury found appellant used a deadly or dangerous weapon (Pen. Code, 12022, subd. (b)) (hereafter 12022(b)) as to both counts and found great bodily injury had been inflicted (Pen. Code, 12022.7) as to count 2. Appellant was committed to the Division of Juvenile Justice (DJJ) for a maximum term of nine years. Appellant contends the weapon use enhancement was improperly imposed on the ADW count, the court miscalculated his maximum term of confinement, and the courts minute order requiring his parents or guardians to reimburse the county for the cost of his care and attorney fees should be stricken.

Eve Del Castello appeals in propria persona from the decision of the Alameda County Superior Court granting her petition for a writ of mandate in part and denying it in part, but refusing to declare Vehicle Code section 40215 unconstitutional insofar as it requires a person contesting a parking ticket to pay the fine before seeking a refund at a hearing on the merits. The court found that the procedures used to schedule an administrative hearing on [appellants] parking citation provided constitutionally inadequate notice of the availability of a process to avoid the payment of the fine prior to the hearing by providing satisfactory proof on an inability to pay. Therefore, the court ordered respondent Alameda County Transit Parking Enforcement Center (the Center) to permit [appellant] to request an administrative hearing on her parking citation without advance payment of the parking penalty, if, pursuant to Vehicle Code [section] 40215, [appellant] provides satisfactory proof of her inability to pay the amount due in advance of the hearing. In denying appellants ex-parte application to revise its order to find the prepayment requirement and the entire statute unconstitutional, the court found: Implicit in the Courts ruling is the determination that Vehicle Code [section 40215] is constitutional. (See Tyler v. County of Alameda (1995) 34 Cal.App.4th 777 [(Tyler)].) This timely appeal followed, in which appellant challenges the constitutional validity of the statute.

Abulghasem Ahmadpour, M & A International, and A & M Supertime Transport appeal from a post-judgment order expunging and canceling a substitution of attorney and an acknowledgement of satisfaction of judgment. Appellants claim that the evidence does not support the court's findings and that the court was biased against them. A & M Supertime Transport further claims that the court and counsel below "completely overlooked . . . Civil Code section 1195." Court affirm.

Ten years ago Mark Foster had the misfortune of subleasing an apartment from Yuki Kobayashi. Since then, Kobayashi has filed multiple meritless lawsuits against Foster and his former landlady Fumi Kiyan. In this action, the third of four naming Foster personally as a defendant, Kobayashi and his titular coplaintiff Tom Hall (collectively Kobayashi),[1]appeal from the trial courts dismissal of their complaint. Because these same claims were litigated and resolved adversely to Kobayashi in another action, which was affirmed in a previous appeal to this court,[2]we dismiss this appeal as frivolous. In addition, pursuant to California Rule of Court, rule 8.276(a)(1), having issued an order to show cause giving Kobayashi and his counsel, Ephraim O. Obi, written notice this court was considering the imposition of sanctions, and having reviewed Obis and Kobayashis written response and heard oral argument on the issue of sanctions together with oral argument on the merits of the appeal itself (Cal. Rules of Court, rule 8.276(e)(1)), Court now issue sanctions against Kobayashi and his attorney Obi.

Plaintiff Antoinette Grewal appeals a judgment entered after the trial court granted the motion for judgment on the pleadings of defendants W. John Martin, W. John Martin, a Medical Corporation, and the University of Southern California (USC). We find that defendants request for admissions and defendants motion for an order deeming the request for admissions admitted, and the notice of the trial courts order granting the motion for an order deeming the request for admissions admitted, were validly served on plaintiff. Consequently, Court reject plaintiffs claim that she was not legally required to respond to defendants request for admissions, that defendants improperly filed the motion to have request for admissions deemed admitted, and that the trial courts order granting that motion was invalid. Court affirm the judgment.