CA Unpub Decisions

Sherman Mazur appeals the denial of his motion to vacate the renewal of a money judgment against him. He claims the renewal is void for lack of jurisdiction and that substantial evidence does not support the trial courts finding that his motion to vacate the renewal was untimely. We conclude the trial court exceeded its jurisdiction by renewing the judgment before the procedural prerequisites for doing so had been met, and that the renewal was voidable by a timely direct attack. Because no substantial evidence was timely presented to the trial court to support the finding that Mazurs motion to vacate was untimely, Court reverse.

Defendant, Sirlasie Rayshon Curry, appeals from his convictions for two counts of assault on a peace officer with a semiautomatic firearm and one count of firearm possession by a felon. (Pen. Code,[1] 245, subd. (d)(2); 12012, subd. (a)(1).) Defendant also appeals from the jurors firearm use finding. ( 12022.5, subds. (a), (d), 12022.53, subd. (b).) Defendant argues the trial court improperly imposed the upper term and should have stayed the count 3 firearm possession sentence pursuant to section 654, subdivision (a). The Attorney General argues the trial court should have imposed a court security fee as to each count. The judgment is affirmed with modifications.

This appeal arises from a child custody dispute in which Appellant Lisa Popovich (Popovich) sought sole physical and legal custody of her two minor children with Respondent Rick Newton (Newton). Popovichs request for sole custody was based primarily on her allegation that Newton had committed domestic violence against her during their marriage. After an extended trial, the trial court entered a judgment awarding the parties joint physical and legal custody of the children. In a 57-page Statement of Decision, the trial court concluded that Newton had rebutted the Family Code section 3044 presumption against joint custody to a perpetrator of domestic violence and that a joint custody award was in the best interest of the children. On appeal, Popovich makes several arguments. First, she contends that the trial court erroneously concluded that Newton, who indisputably committed an act of domestic violence against her, overcame the statutory presumption against a joint custody award. Second, Popovich asserts that the trial court improperly precluded her from cross-examining the child custody evaluator about the deposition testimony of Newtons former wife who had testified about his alleged abusive behavior toward her. Third, Popovich argues that the trial court erred in awarding attorneys fees and costs to Newton by failing to apply a statutory presumption against an attorneys fees award to a perpetrator of domestic violence. Court conclude that the trial courts factual findings in this matter were supported by substantial evidence and that there was no abuse of discretion in the trial courts award of joint custody. Accordingly, Court affirm the judgment.

Defendant, Henry Clark Tolliver, appeals from his convictions for possession of marijuana for sale (Health & Saf. Code, 11359) and sale of marijuana. (Health & Saf. Code, 11360, subd. (a).) Defendant admitted that he was previously convicted of a serious felony. (Pen. Code,[1] 667, subds. (b)-(i), 1170.12.) Defendant argues the trial court abused its discretion by prejudicially denying his motion to compel disclosure of peace officer personnel records and there was insufficient evidence to support his conviction for selling marijuana. The Attorney General argues the trial court should have imposed: penalty assessments pursuant to section 1464, subdivision (a) and Government Code section 76000, subdivision (a); an additional court security fee; a state surcharge; and a state court construction penalty. Court affirm with modifications.

Fred D. Rogers appeals from a judgment (1) denying his petition to admit to probate a 1985 will of Howard L. Andersen (hereafter the decedent), (2) decreeing that the decedent's estate "will be administered under the laws of intestacy," and (3) confirming the appointment of respondent Jolene Andersen (hereafter Jolene) as special administrator. Appellant contends that the trial court erroneously concluded that the decedent had revoked the 1985 will. Court disagree and affirm.

Jonathan H. appeals from the judgment of commitment to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), formerly known as the California Youth Authority. He contends that the statutory prohibition against placing wards in county jail as a condition of probation if they are over 18 but less than 19 years old violates substantive due process as applied in this case. We dismiss the appeal as moot. Appellant became a ward of the juvenile court (Welf. & Inst. Code, 602) based upon his December 6, 2005, admission of a felony vehicle theft and a misdemeanor battery on a peace officer and emergency personnel. (Veh. Code, 10851, subd. (a); Pen. Code, 243, subd. (b).) On June 1, 2006, after ordering appellant's commitment to DJJ for "2450 [days] consecutive," the juvenile court stayed execution of its order, "upon successful completion [of and] graduation [from] Teen Challenge." The appeal is dismissed.

Nurit Avivi appeals the trial courts grant of summary judgment in her malpractice claim against respondents Centro Medico Urgente Medical Center and Edward Rubin M.D. She argues that her expert witness was qualified to provide an opinion about the standard of care to which respondents were held and that the experts declaration, if admitted, would have established a triable issue of fact. The trial court excluded the declaration because the expert did not say he was familiar with the standard of care in Southern California. We conclude that the appropriate test for expert qualification in ordinary medical malpractice actions is whether the expert is familiar with circumstances similar to those of the respondents; familiarity with the standard of care in the particular community where the alleged malpractice occurred, while relevant, is generally not requisite, and is not in this case. Because appellants expert disclosed sufficient familiarity with similar circumstances to entitle a jury to hear his opinion, Court reverse and remand with directions that the trial court deny summary judgment.

Nurit Avivi appeals the trial courts grant of summary judgment in her malpractice claim against respondents Centro Medico Urgente Medical Center and Edward Rubin M.D. She argues that her expert witness was qualified to provide an opinion about the standard of care to which respondents were held and that the experts declaration, if admitted, would have established a triable issue of fact. The trial court excluded the declaration because the expert did not say he was familiar with the standard of care in Southern California. We conclude that the appropriate test for expert qualification in ordinary medical malpractice actions is whether the expert is familiar with circumstances similar to those of the respondents; familiarity with the standard of care in the particular community where the alleged malpractice occurred, while relevant, is generally not requisite, and is not in this case. Because appellants expert disclosed sufficient familiarity with similar circumstances to entitle a jury to hear his opinion, we reverse and remand with directions that the trial court deny summary judgment.

This case returns to this court after remand for the sole purpose of determining the amount of recoverable costs on appeal. Despite the limits on the remand, the parties placed before the trial court significant issues pertaining to attorneys fees relating to the underlying litigation. Finding the award of costs within the discretion of the court on our remand, Court affirm.

The minor, Roger A., appeals from the January 11, 2007 wardship order. (Welf. & Inst. Code, 602.) He was placed home on probation. The juvenile court sustained the allegation of a delinquency petition filed December 19, 2006, charging the minor with carjacking. (Pen. Code, 215, subd. (a).) The juvenile court declared the offense a felony and set the minors maximum confinement time at nine years. The minor argues: there was insufficient evidence to sustain the petition; the juvenile court improperly imposed a maximum period of confinement; and probation condition No. 15 was unconstitutionally vague. Court affirm the wardship order with a modification to the challenged probation condition.

A modification decision.

Defendant, Luis E. Rodriguez, appeals from his convictions for: three counts of lewd acts upon a child under the age of 14 (Pen. Code,[1] 288, subd. (a)); four counts of forcible lewd act upon a child ( 288, subd. (b)(1)); and failure to register as a sex offender. ( 290, subd. (a)(1)(A).) The jury also found that defendant was previously convicted of a violation of section 288, subdivision (a), a serious felony. ( 667, subds. (a)(1), (b)-(i), 667.61, subd. (c).) Defendant argues the trial court improperly: admitted evidence of prior sexual offenses; denied his self-representation motion; imposed consecutive sentences in counts 1 and 3 through 7; and imposed a cruel and unusual sentence of 309 years. The Attorney General argues six additional court security fees should be imposed. Court affirm with modifications.

John David Olivas appeals an order revoking his probation and sentencing him to two years' imprisonment following his guilty plea to two counts of selling marijuana. (Health & Saf. Code, 11360, subd. (a).) Court affirm.

The District Attorney of Los Angeles County filed a petition alleging that defendant and appellant J.S. (J.) came within the provisions of Welfare and Institutions Code section 602 because he committed misdemeanor vandalism (Pen. Code, 594, subd. (a)) and misdemeanor resisting arrest (Pen. Code, 148, subd. (a)(1)). The juvenile court found the allegations to be true and placed J. on probation under Welfare and Institutions Code section 725, subdivision (a) under various terms and conditions. J. was permitted to remain in his parents home. The juvenile court set a maximum period of physical confinement at one year, four months. On appeal, J. contends that the juvenile court erred in setting a maximum period of physical confinement because he was placed at home on probation and not ordered confined in the California Youth Authority. Court agree and order the one year, four month maximum period of physical confinement stricken from the order placing J. on probation. Court otherwise affirm the order of probation.