CA Unpub Decisions

In this dispute among neighboring cattle ranchers, Harry A. Baker and Jacquelyn L. Baker,[1]trustees of the Harry A. Baker and Jacquelyn L. Baker Revocable Trust of 1998, sued David W. Goddard, James D. Hudson, Eugene Burrill, Thomas Eugene Burrill (individually and as trustee for Anthony Lynn Burrill), and Crystal Burrill, claiming entitlement to access the Bakers property by a road crossing defendants properties. Baker alleged in the alternative an easement by necessity, an easement by prescription, or an equitable easement.

The matter went to bench trial. After Baker rested, defendants moved for judgment. (Code Civ. Proc., 631.8 [subsequent undesignated statutory references are to the Code of Civil Procedure].) The trial court granted the motion with a written statement of decision. Subsequently, the court granted defendants motion for attorney fees and costs as to two requests for admissions which the court found that Baker had wrongly refused to admit. ( 2033.420.) Baker appeals from the judgment and the fee order.
However, Court reverse the order for attorney fees. One request for admissions was so broadly worded that Bakers refusal to admit the alleged facts was literally correct, and the other did not ask Baker to admit any fact which had any actual or potential importance to the trial of the case. Thus, an award of fees to defendants as sanctions was inappropriate.

A jury found defendant Christopher Glenn Jimenez guilty of first degree burglary (Pen. Code, 459).[1] In a bifurcated proceeding, the trial court found true allegations defendant served three prior prison terms ( 667.5, subd. (b)) and had a prior juvenile court adjudication that qualified as a strike. ( 1170.12.) Defendant was sentenced to an aggregate term of 15 years in state prison, consisting of 12 years (the upper term of six years, doubled for the strike prior), plus one year for each of the three prison priors. ( 667.5, subd. (b).) Defendant appeals, contending (1) there is insufficient evidence to support his burglary conviction, (2) the trial court erred in using his prior juvenile adjudication to impose a second strike sentence, and (3) imposition of the upper term violates his right to due process under the Sixth and Fourteenth Amendments. Court affirm.

Larry John Little filed a petition for writ of habeas corpus challenging the judgment entered after a jury convicted him of the second degree murder of Eddy Rabatore. His petition asserts that because his trial counsel did not investigate the existence of, and present evidence on, posttraumatic stress disorder (PTSD), he was denied his constitutional right to effective assistance of counsel. Although the performance of Little's trial counsel was below the applicable standard of objective reasonableness, Court conclude that, based on the record in this case, his counsel's deficient performance was not prejudicial.

Mary Pronovost filed a wrongful termination action against her former employer, Aurora Loan Services, Inc. (Aurora) and several related individuals and entities. Aurora responded by moving to compel arbitration based on an arbitration provision in Pronovost's employment application that she filled out after verbally accepting Aurora's job offer. The trial court denied Aurora's motion to compel arbitration, finding the arbitration provision was procedurally and substantively unconscionable under Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 (Armendariz). Corut affirm.

Enrique M. (Enrique) filed an order to show cause seeking to modify an order governing the parenting schedule and schooling of his and Angelina V.'s (Angelina) son, X. The trial court granted in part Enrique's request to modify the parenting schedule, ordering that Enrique have additional parenting time with X. However, the trial court refused to provide Enrique with all of the additional parenting time he sought in his request. The trial court also denied Enrique's request to allow Enrique to enroll X. in a different elementary school. Enrique appeals, claiming that the trial court erred in refusing to provide him with all of the additional parenting time he sought in his request, and in denying his request to enroll X. in a different school. Enrique also claims that the court erred in failing to apply the "strict scrutiny" standard to his requests. Court affirm the order.

Maria R. and Mario H. (hereafter mother and father, respectively) appeal from the trial courts order under Welfare and Institutions Code section 366.26[1]terminating their parental rights to M.H., their then two-year-old daughter. When M.H. was three months old, Riverside County Department of Public Social Services (DPSS) took her into protective custody and filed a section 300 petition alleging that M.H. came within the provisions of subdivisions (b) and (g) because her mother and father had been arrested on child endangerment and drug charges. According to the report prepared for the detention hearing, mother and father both admitted they regularly used methamphetamine. The trial court detained M.H. at a hearing in September 2005, and placed her in foster care. At the combined jurisdiction and disposition hearing, the trial court, among other things, ordered reunification services for father but denied them to mother under section 361.5, subdivisions (b)(10) and (11) because mother had failed to reunify with two of her other children, M.H.s half siblings. By the time of the six-month review hearing, both mother and father were serving terms in prison.[2] Because he was incarcerated, father had not made progress toward reunification. Consequently, the trial court terminated his services and set the matter for a selection and implementation hearing under section 366.26.
The order denying mothers section 388 motion is affirmed.

Defendant pled guilty to grand theft (Pen. Code, 487(a)), pronouncement of judgment was withheld and he was granted probation, as agreed to in his plea bargain. Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record. Court offered the defendant an opportunity to file a personal supplemental brief, which has been read and considered.

Nicolas M. (Father), alleged father of Gabriella M., and Angela R. (Mother), mother of Gabriella M., Angelina R. and A.R., appeal from the juvenile courts order under Welfare and Institutions Code[1]section 366.26 terminating their parental rights to their respective children. They challenge the juvenile courts findings that neither the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901, et seq.) nor the beneficial relationship exception under section 366.26, subdivision (c)(1)(A), applies.
The judgment is reversed.

A modification decision.

Appellant Bruno Martinez entered a negotiated plea of no contest to the charge of false imprisonment by violence (Pen. Code, 236).[1] As part of the plea bargain, it was agreed his sentence would be a maximum term (or mitigated lid) of 16 months, with either a paper commitment to prison (since his custody credits exceeded the term) or probation. Commissioner Gottlieb accepted the plea and set a sentencing hearing for the following month. When appellant failed to appear for sentencing, a bench warrant was issued and he was arrested over a year later on the warrant. Thereafter, appellant was brought before a different judge, Judge Harrell, for the purpose of sentencing appellant on the original charges. Judge Harrell sought to follow the terms of the plea bargain and sentenced appellant to the term of 16 months without probation. This appeal followed. Appellant contends the trial court erred because he was not sentenced by the same judge who heard his plea agreement pursuant to People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle). Court affirm the judgment.

Debra Carver appeals from the trial courts denial of her motion to set aside her default judgment and marital settlement agreement in a dissolution of marriage action. Corut affirm the order.

A modification decision.

Appellant Ernesto Angel Munoz was sentenced to prison for committing aggravated assault and attempting to commit carjacking and robbery, with attendant enhancements for inflicting great bodily injury and using a deadly weapon. He contends the court erred in giving the standard flight instruction and failing to exclude evidence pertaining to a photographic lineup. Court reject these contentions and affirm the judgment.

Appellant Richard H. is the presumed father (father) of seven-year-old S.P. He appeals from the final judgment terminating jurisdiction and returning S.P. to her mother, without visitation rights for him.[1] He claims the court erred in failing to comply with the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) (ICWA), in failing to provide him with reunification services, and in denying him visitation rights. Court affirm.