CA Unpub Decisions

Appellants Melvyn Klein (Klein) and Margaret Drach (Drach) are residents and shareholders in a stock cooperative owned by Respondent Ocean Towers Housing Corporation (Ocean Towers). In August 2005, Klein replaced the floor-to-ceiling window-wall in his residential unit without the prior approval of Ocean Towers. Ocean Towers thereafter requested that Klein allow its building architect to enter the unit to inspect the window-wall. When Klein refused to permit entry, Ocean Towers filed an action for declaratory relief against Klein and Drach, seeking a judicial declaration that it had the right to enter the unit to inspect the window-wall. Following a bench trial, the trial court granted judgment in favor of Ocean Towers, declaring that, pursuant to Ocean Towers Housing Corporations Rule and Regulation 14.09, Ocean Towers Housing Corporation has the right to inspect the window-wall installed by Klein and may do so pursuant to the requisite notice described therein. On appeal, Klein argues that the trial court erred in granting declaratory relief and in awarding Ocean Towers its attorneys fees. For the reasons set forth below, Court affirm.

There is the man Mr. Frits VanSchaik. Then there is the corporation Frits VanSchaik General Contractors, Inc. Legally, they are different. A homeowners association called American Beauty Classics I (ABC) sued them both about a fence repair job. The court entered judgment against both the man and the corporation. The corporation does not appeal. But Mr. VanSchaik does appeal, saying there is no basis for the judgment against him. Hes right. Mr. VanSchaik says a negligence theory cannot support the judgment against him. This is correct. Conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.
As to the natural person Frits VanSchaik only, the judgment is reversed. On remand the trial court is directed to vacate the judgment against the natural person Frits VanSchaik and to enter a new judgment in his favor. Court award the costs on appeal to Frits VanSchaik in an amount to be determined by the trial court on remand.

Henry Neve Gomez (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of making a criminal threat. (Pen. Code, 422.)[1]In bifurcated proceedings, the jury found that he had a prior serious felony conviction that required a five-year enhancement and also qualified him for sentencing pursuant to the Three Strikes law ( 667, 1170.12) and that he had served a separate prison term for a felony ( 667.5, subd. (b)). At sentencing, the trial court denied his Romero motion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The trial court sentenced him to an aggregate term in state prison of 12 years. He contends that: (1) the evidence is insufficient to support the judgment, and (2) the trial court improperly excluded a 2001 act of violence by the victim, which denied him his Sixth Amendment right to present a defense. Court find the contentions to be meritless and affirm the judgment.

L. J. appeals orders of the juvenile court denying her modification petition, and terminating parental rights to her sons Evan and Nigel. (Welf. & Inst. Code, 388, 366.26, subd. (c)(1).) Court affirm.

Edward Nolan Norwood was convicted by jury of possession of cocaine base (Health & Saf. Code, 11350) and admitted a prior strike conviction (Pen. Code, 667, subds. (a) (i); 1170.12, subds. (a)-(d)) and a prior prison term enhancement (Pen. Code, 667.5, subd. (b)). He was sentenced to five years state prison and appeals, contending that the trial court erred in denying his to motion to suppress evidence. (Pen. Code, 1538.5.) Court affirm.

Defendant and appellant, Keung Han Kim, appeals from the judgment entered following his conviction, by jury trial, for assault on a child causing death, second degree murder, mayhem and child abuse, with enhancements for causing great bodily injury and causing injury resulting in the death of a child (Pen. Code, 273ab; 187, 203, 273a, 12022.7, 12022.95). Sentenced to state prison for 25 years to life, Kim claims there was trial error. The judgment is affirmed.

Diana C. appeals from the order declaring her a ward of the juvenile court (Welf. & Inst. Code, 602)[1]following a finding that she committed vandalism causing damage over $400, a felony. (Pen. Code, 594, subd. (a).) She was placed on probation and the maximum term of confinement was set at three years. She contends that the maximum term of confinement must be stricken because she was not committed to the California Youth Authority (CYA)[2]but was ordered home on probation. Court order the maximum term of confinement stricken.

Ray Hatchett appeals from the judgment entered following a jury trial in which he was convicted of five counts of second degree robbery (Pen. Code, 211) and found to have personally used a deadly and dangerous weapon, a knife, within the meaning of Penal Code section 12022, subdivision (b)(1). He was sentenced to prison for eight years and four months. On January 17, 2007, appellant submitted a letter to the court claiming he did not commit the crime and was erroneously found guilty. He noted no fingerprints had been taken from the crime scenes. He additionally claimed photographs depicting the robber were not of him. The court considered appellants letter a motion for new trial and denied the motion. In denying the motion, the court noted it had listened to the witnesses and had seen their demeanor while testifying and that appellant had been identified as the robber by several different sources.

Father Gabriel R. appeals from the dependency courts order appointing a guardian for his two children. Gabriel contends the dependency court erred in delegating visitation decisions to the guardian, and that the Department of Children and Family Services failed to serve him with notice of the Welfare & Institutions Code section 366.26 hearing and give him a copy of the report. Court reverse and remand.

This is an appeal from a fee award in an interpleader action. Appellants Timothy M. Morrison and T.M. Morrison and Associates, Inc. (TMMA) argue that the award was excessive because it included compensation for activities beyond litigation of the interpleader action. They also contend there is no support for certain hours. Appellants have not demonstrated an abuse of discretion or other error by the trial court. Court affirm the award. We also deny a motion for sanctions on appeal brought by respondent Ayscough & Marar.

Troy D. Smith appeals from a judgment entered following a jury trial in which he was convicted in count 1 of assault with a firearm (Pen. Code, 245, subd. (a)(2)) with the finding that he personally used a firearm within the meaning of Penal Code section 12022.5 and in count 3 of discharging a firearm with gross negligence (Pen. Code, 246.3). He admitted that he suffered two prior convictions of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b) (i); 1170.12, subds. (a) (d)) and two prior serious felonies within the meaning of Penal Code section 667, subdivision (a)(1). The judgment is affirmed.

A juvenile court terminated Samantha T.s parental rights to her three youngest daughters J.V., J.E., and D.M. The juvenile court said it was acting in these childrens best interest. Samantha T. appeals. Her daughters do not. Court affirm.

The juvenile court sustained a petition charging Justin G. (minor) with two counts of commercial burglary in violation of Penal Code section 459 and one count of battery in violation of Penal Code section 242. At minors disposition hearing, the juvenile court found that minor was a person described by Welfare and Institutions Code section 602 and declared him a ward of the court. The juvenile court committed minor to the care, custody, and control of the probation officer for a suitable placement and imposed terms and conditions of probation. The court determined minors maximum confinement time to be three years. Minor appeals on the ground that probation condition No. 15, which prohibits him from associating with anyone disapproved of by parents or probation officer should be modified to include a requirement of knowledge.

Kelly T. (father) appeals from an order of the juvenile court terminating parental rights and declaring his children adoptable. (Welf. & Inst. Code, 366.26, subd. (c)(1).)[1] He contends that he qualifies for the "beneficial relationship" exception to the presumption that adoption is the preferred plan for a child's permanent placement. He also contends that notice required by the Indian Child Welfare Act was inadequate. Court affirm.