CA Unpub Decisions

Target Stores (Target) petitions for a writ of review disputing a decision of the Workers Compensation Appeals Board (WCAB) concluding that a 1994 stipulated award for further medical care contained a clerical error and that, regardless of the error, Target was estopped from terminating medical benefits it had been providing a former employee for over 11 years. (Lab. Code, 5950, 5952; Cal. Rules of Court, rule 8.494.) Finding the WCABs decision based on substantial evidence contained in the record, Court deny the petition and grant Sollarss request for attorney fees.

The condominium owners (the Owners) of the Shady Hollow Condominiums filed an action against the Rohrs Family Trust, owner of the ground underlying the project, resisting the rent adjustment pursuant to the ground lease. The Owners appeal from the pendent lite order requiring them to pay increased rent, claiming the order is an invalid mandatory injunction. Court agree and reverse.

Three sibling children were detained when the youngest was under age three. Subsequently, their mother, Kimberly B. (mother), gave birth to a fourth child while in prison. That child was also detained. At the continued six-month review hearing, the court scheduled a Welfare and Institutions Code section 366.26 hearing to take place within 120 days. Mother challenges that order with respect to the three oldest children, who were detained as a sibling group. She says the court failed to provide her information as required by section 361.5, subdivision (a)(3) and failed to exercise its discretion and consider the section 366.21, subdivision (e) factors to determine the best interests of the children.
As to the first point, the courts failure to comply with the advisement requirements of section 361.5, subdivision (a)(3) was harmless error under the facts of this case. As to the second point, an addendum report prepared by the Orange County Social Services Agency (SSA) specifically addressed the section 366.21, subdivision (e) factors, including the wishes of the children, and the record reflects that the court took that report into consideration in making its ruling. Furthermore, SSA offered to stipulate that the two oldest children would testify that they wanted to reunify with their mother. The petition for a writ of mandate and the request for stay are denied. The petition for a writ of mandate and the request for stay are denied.

A jury convicted defendant of attempted distribution or exhibition of harmful matter to a minor through the Internet (Pen. Code 664/288.2, subd. (b)), attempted lewd or lascivious act on a child under the age of 14 (Pen. Code 664/288, subd. (a)), and sexual intercourse with a minor more than three years younger than the defendant. (Pen. Code 261.5, subd. (c).) Defendant was placed on probation on the condition that he serve one year in the county jail. On appeal, defendant contends reversal of his conviction for an attempted lewd act is required because (1) the trial court failed to instruct sua sponte on entrapment; (2) trial counsel was ineffective; (3) the evidence that his conduct amounted to an attempt is insufficient. He also argues that his conviction for attempted distribution of harmful matter should be reversed because it violates the federal constitutions dormant Commerce Clause and the First Amendment. Court affirm.

Plaintiffs Sirous Maali and Kevin Bonyadi sued defendant Hamid Abtahi and others for negligence, fraud, and related causes of action after a real estate purchase transaction failed, causing them to lose a deposit and incur other damages. Following a court trial, the trial court rendered a judgment against defendant for approximately $149,000 in compensatory damages plus $50,000 in punitive damages. On appeal, defendant contends that the judgment should be reversed because his trial counsel represented conflicting interests. Court affirm the judgment.

A modification decision.

James E. Roberts-Obayashi Corporation (Obayashi) appeals from a summary judgment in favor of PMN Design Electric, Inc. (Design). The underlying action against Obayashi arose from an injury suffered by a Design employee while performing under the terms of a subcontract between Design and Obayashi. Obayashi cross-complained against Design for indemnity, and both parties moved for summary adjudication or judgment on the cross-complaint. Court affirm the judgment in Designs favor.

Antonio L. (appellant) appeals from an order of the Contra Costa Juvenile Court committing him to ten years four months in the Division of Juvenile Justice (DJJ) (formerly the California Youth Authority). He asserts the juvenile court: (1) improperly aggregated ten months of confinement time to his maximum term of confinement for the first four of his previously sustained petitions; (2) erred in calculating his custody credits; (3) violated his due process rights by failing to provide notice that confinement time for his previously sustained petitions could be aggregated in calculating the maximum term of confinement; and (4) erred in imposing eight months of confinement time for a violation of Vehicle Code section 23153, subdivision (a). Court modify the judgment to reflect the correct maximum term of confinement and custody credits, and affirm the judgment as modified.

Defendant Louis Shane Edwards appeals from a judgment entered upon his conviction by jury of one count of rape by force. (Pen. Code, 261, subd. (a)(2)). He contends that the evidence is insufficient to prove the element of force. He also contends that Cunningham v. California (2007) 549 U.S., 127 S.Ct. 856 (Cunningham) precludes his sentence to the upper term of eight years. Court affirm.

Fere Habte Zekarias appeals from a judgment entered after he pleaded no contest to assault with a deadly weapon. (Pen. Code, 245, subd. (a)(2).) He challenges a $20 court security fee that was imposed. Court find no error and affirm.

In this paternity action, Cherry Baena-Levstek (appellant) appeals the trial courts ruling granting standing to Edwin H. Rayford (respondent) to establish his parental relationship to appellants daughter. She also appeals the orders granting respondents request for DNA testing and ordering mandatory visitation. As we shall explain, at least two of these orders are not appealable. As to the other order, even if it is appealable, the issue is moot. Accordingly, Court dismiss the appeal in its entirety.

Melvin Phillips was arrested and charged with grand theft and possession of cocaine and drug paraphernalia. After he admitted a probation violation for possession of drug paraphernalia, Phillips sued the arresting officers and the City of Blue Lake under 42 U.S.C. 1983. The trial court dismissed this suit on demurrer based on Heck v. Humphrey (1994) 512 U.S. 477 (Heck), which precludes the prosecution of any section 1983 claim that implicates the lawfulness of the defendants conviction. Court agree that the claim is barred and affirm the judgment of dismissal.

Leonel Hernandez appeals from a judgment entered upon his conviction by jury of assault (Pen. Code, 245, subd. (a)(1)). The jury also found to be true the allegation that appellant personally inflicted great bodily injury during the assault within the meaning of section 12022.7, subdivision (a). The trial court sentenced appellant to an aggregate sentence of seven years; the upper term of four years for the assault and a consecutive term of three years pursuant to section 12022.7, subdivision (a). Appellant contends that imposition of the upper term sentence violated his right to a determination by a jury beyond a reasonable doubt of facts necessary to increase his sentence beyond the statutory maximum, as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Court filed our original opinion in this matter on September 2, 2005. On February 20, 2007, the United States Supreme Court having granted appellants petition for writ of certiorari, vacated the judgment in this matter and remanded it to this court with directions to reconsider this matter in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). By order of August 6, 2007, Court authorized the parties to file supplemental briefs for further consideration of this matter in light of Cunningham and the California Supreme Courts decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On September 25, 2007, appellant filed his supplemental brief, and, on October 9, 2007, respondent filed its responding brief. Having reconsidered the matter in light of the above mentioned recent authorities, Court now affirm.

A modification decision.