CA Unpub Decisions

Lillie J. Hurd appeals from a judgment awarding Clinton A. Johnson the sum of $185,748.67 for his attorney fees. Hurd contends that the fees awarded were excessive by approximately 25 percent. She also argues that the trial court erred in amending the judgment after the trial. Court affirm.

Alvin Haynes appeals his conviction, after a jury trial, for receiving stolen property (felony) and resisting a police office (misdemeanor), for which he received a total prison term of six years (double the upper term of three years for the felony).[1] He attacks the sufficiency of evidence to support the conviction for resisting a police officer, and further contends the court abused its discretion in failing to consider relevant mitigating circumstances in sentencing him to the upper term. Court find no error and affirm.

Minor Erin R.s nondependent brother, Richard R., appeals from the denial of his petition under Welfare and Institutions Code section 388[1] for home visits with Erin in the home he lives in with Erins father (Father). Fathers parental rights as to Erin had been terminated in 2005. The juvenile court denied the petition without an evidentiary hearing, based on briefs and declarations filed by Richard, the Sonoma County Human Services Department (the Department), and Erins counsel. Richard and Erins appellate counsel contend that the trial court erred in not requiring an evidentiary hearing. Court find no error or abuse of discretion and affirm the juvenile courts orders.

Appellant Roosevelt A. Fernandes filed consolidated actions against respondents Southern California Edison Company (SCE) and Kurt and Linda Krabbe (Krabbe) after being terminated from SCEs employment. The trial court entered summary judgments for respondents and appellant appeals.
Among other things, appellant contends the trial court erred in granting summary judgment to SCE because there are triable issues of fact as to the nature of his employment, whether SCE had good cause to terminate his employment and whether SCE promised to buy his preemployment patents. Appellant further contends that the trial court committed reversible error in denying his motion for new trial based on SCEs alleged suppression of several documents that appellant had created. Appellant claims the court erred in granting summary judgment to Krabbe because damages were not an element of his claim for defamation, truth was not a defense, and the court applied an erroneous standard for causation. Appellant additionally contends the trial court reversibly erred in denying mandatory relief from the summary judgments due to his attorneys mistake, inadvertence, or neglect and his motion for reconsideration. Finding no error, Court affirm.

Plaintiffs Iraj Beroukhim (plaintiff) and his wife Shahnaz Beroukhim appeal from summary judgments granted to the American Automobile Association (AAA) and the Automobile Club of Southern California (ACSC; collectively respondents), co-defendants in a personal injury action arising from a collision with a tow truck driven by Alexan Ghazerian, an employee of Delta Towing & Transport, Inc. (Delta). Plaintiffs sued not only Ghazerian and Delta, who are not parties to this appeal, but also respondents, on theories of vicarious liability and also direct negligence. Plaintiffs presently claim that the summary judgments were improper because there were unrefuted or triable issues of liability for negligently training, screening, and certifying Deltas employees, particularly Ghazarian. The relevant record does not support these claims, and Court therefore affirm the judgments.

First, Naco asserts that Kermani waived the right to judicial review by signing a settlement agreement. The portion of the settlement agreement relating to the right to review reads: The parties will inform the Court of this settlement, request the Court to vacate the trial date, and request the Court to retain jurisdiction to enforce this SETTLEMENT AGREEMENT. Any dispute which arises in connection with the interpretation or enforcement of this SETTLEMENT AGREEMENT shall be submitted to MEDIATOR for resolution who shall be empowered to act as an arbitrator and to render a decision with respect to such dispute which shall be binding and final on the parties. The arbitrators decision may be enforced by submission to the Los Angeles County Superior Court which shall issue an order enforcing the decision of MEDIATOR acting as an arbitrator. The parties waive any and all rights to jury trial, appeal or otherwise to challenge the decision of the MEDIATOR acting as an arbitrator. If MEDIATOR is unwilling or unable to resolve such dispute, then it may be submitted to the Superior Court for determination in the same manner as provided herein for submission to MEDIATOR. (Italics added.) The trial court questioned the parties in open court to ensure that they fully understood the terms of the settlement agreement. Nacos motion to dismiss the appeal is denied.

Michael Dean was convicted of attempting to send harmful messages to a minor (counts 1-5; Pen. Code, 664 & 288.2, subd. (b)), and attempting to commit a lewd act on a child (count 6; 664 & 288, subd. (a)). He was placed on five years of formal probation with 180 days in county jail.
The evidence showed that on numerous dates in June and July of 2004, appellant used his computer to send sexually graphic e-mails and photographs to a person he thought was a 13-year-old girl named Hailey. He was actually communicating with two male police detectives who were pretending to be Hailey as part of a sting operation investigating sexual abuse of children through computers. Appellant was arrested when he arrived at the Los Angeles Zoo on July 22, 2004, for a prearranged meeting with Hailey.[2] Counts 1 through 5 were based on his sending pornographic photos on specific days. Count 6 was based on the combination of the Internet communications, his showing up at the zoo, and certain physical evidence that was found in his truck and home computer. Appellant contends: (1) There was insufficient evidence to support his conviction on count 6. (2) For counts 1 through 5, the trial court should have instructed on a lesser included offense. (3) Some of the items of physical evidence were erroneously admitted.
Court find no error and affirm.

Plaintiff and appellant DLJ Mortgage Capital, Inc. ("DLJ") appeals the trial court's entry of summary judgment in favor of Home Loan Mortgage Corporation ("Home Loan") and Windvest Corporation ("Windvest") in DLJ's suit for, among other things, a constructive trust on monies collected with respect to certain home loans. Because we conclude that the trial court properly ruled that the promissory notes held by Windvest represented enforceable obligations of the borrowers, Court affirm.

The first promissory note was for the principal sum of $6 million. It was signed by appellants Valcom, Inc. and Valencia Entertainment International, LLC (collectively Valcom) in favor of Hawthorne Savings Bank (Hawthorne Note). The Hawthorne Note was secured by a lien (senior lien) on commercial property (property) owned by Valcom. Including interest, fees and expenses, the final sum due on the Hawthorne Note was $6,559,636.60. The second promissory note was signed by Valcom in favor of respondent Laurus Master Fund, Ltd. (Laurus) and was denominated Note A. It was for the principal sum of $1 million, and it was secured by a deed of trust (Deed 1) on the property. The third promissory note was signed by Valcom in favor of Laurus and was denominated Note B. It was also for the principal sum of $1 million. Note B was secured by a deed of trust (Deed 2) on the property. To prevent being foreclosed out of Deed 1 and Deed 2, Laurus paid off the Hawthorne Note for $6,559,636.60 and extinguished the senior lien.
Summary judgment and the award of attorney fees in favor of Laurus and Chicago are reversed. The matter is remanded for further proceedings against Chicago and Laurus with respect to breach of contract, conversion and violation of section 2924k. As well, the accounting claim may proceed against Laurus.

This is the second time we have reviewed this case. The first appeal was from a judgment following the jury trial in which appellant Thomas Jason Milam was convicted of multiple crimes committed on January 4, 2003, arising from the robbery of employees in a pawnshop; the subsequent police pursuit which included appellants shooting at officers; and appellants breaking into the townhouse of Teresa C. Appellant was sentenced to a total determinate term of 115 years and eight months in prison, including terms for firearm enhancements. That appeal concerned only certain crimes related to his breaking into the townhouse and his subsequent conduct with the victim (count 14, residential burglary; Pen. Code 459; count 15, kidnapping to commit robbery, Pen. Code 209, subd. (b)(1)). Concluding that on the specific facts of this case there was insufficient evidence of kidnapping, we reversed the conviction on count 15 and remanded for resentencing; in all other respects we affirmed the judgment. The instant appeal follows our remand and the trial courts resentencing of appellant, raising the issue of whether the constitutional principles enunciated in Cunningham v. California (2007) U.S., 127 S.Ct. 856, forbid imposition of consecutive sentences and an upper term for a violation of parole, the reason given for imposition of the upper term on count 5. Concluding there are no constitutional violations, Court affirm.

Appellant and his fellow gang member, Carlos Nava, stood in the street and blocked the vehicle driven by Louis Alberto Zamora. They challenged Zamora to fight them. As Zamora watched appellant throw gang signs, Nava pulled out a gun and shot Zamora in the head and body. Zamora was severely injured but survived. We recently affirmed Navas conviction. Appellant had a separate trial. He was convicted of attempted premeditated murder (count 1) and shooting at an occupied motor vehicle (count 2), with findings that the offense was committed for the benefit of a criminal street gang, and a principal intentionally discharged a firearm, causing great bodily injury. He was sentenced on count 1 to life with the possibility of parole, plus 25 years to life for the firearms enhancement. Count 2 was stayed (Pen. Code, 654). One of the courts orders requires appellant to pay $2,543.13 in attorney fees. Appellant contends: (1) His constitutional right to a public trial was violated when the trial court excluded his two male cousins from the courtroom during the testimony of an eyewitness. (2) If that issue was waived for lack of an objection, he received ineffective assistance of counsel. (3) There were prejudicial errors in the instructions on aiding and abetting. (4) The evidence was insufficient to support his conviction. (5) The trial court erroneously denied his posttrial motion to substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). (6) This court must review for error the in camera proceedings that occurred pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). (7) He should not have been ordered to reimburse the cost of his defense. Respondent concedes the need for a remand for a hearing on appellants ability to pay for counsel. Court remand on that issue, and otherwise affirm.

Defendant, Jerry Ma, appeals from his convictions for: two counts of making criminal threats (Pen. Code, 422); cocaine possession for sale (Health & Saf. Code, 11351); controlled substance possession while armed with a firearm (Health & Saf. Code, 11370.1, subd. (a)); and psilocybin possession. (Health & Saf. Code, 11377, subd. (a).) Defendant argues the trial court improperly admitted hearsay evidence. The Attorney General argues that additional penalties and fees should have been imposed. Court affirm with modifications.

In this dependency proceeding, Ambers mother (mother) appeals from the juvenile courts disposition order placing Amber in her fathers custody. Mother argues that the record lacks substantial evidence that the only reasonable way to protect Amber was to remove Amber from her custody. Court affirm.

Plaintiff, Paul Bilecky, appeals from an order denying his petition to set aside a judgment confirming an arbitration award. Court affirm the order.