CA Unpub Decisions

Three appeals have been filed in the present action for premises liability and negligence brought by appellant Jason Heilig (Heilig or appellant) against defendant and respondent Touchstone Climbing, Inc. (Touchstone or respondent): from a judgment entered upon an order that granted respondents motion for summary judgment and dismissed the action; from an order that struck respondents cross-complaint but denied appellant an award of attorney fees; and from an order and amended judgment that awarded attorney fees to respondent.[1] Appellant argues that the trial court erred by finding that the defense of express assumption of the risk bars his action. He also claims that respondent was erroneously awarded attorney fees based upon a provision in an agreement between the parties for release from liability, and that he was improperly denied an award of attorney fees pursuant to Code of Civil Procedure section 425.16, subdivision (c). Court disagree and affirm the judgment and order.

Brian Thomas McMahon appeals his conviction by jury verdict of one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and one count of possession of a hypodermic needle and syringe. (Bus. & Prof. Code, 4140.) In a bifurcated proceeding, the court found true the allegation that he had served three prior prison terms. (Pen. Code, 667.5, subd. (b).) In our original unpublished opinion, filed May 31, 2007, we affirmed appellants convictions, but reversed the upper term sentence based on our interpretation of Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856]. On August 8, 2007, the California Supreme Court granted a petition for review. On September 12, 2007, it transferred the case to us for reconsideration in light of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. In light of these cases, Court affirm appellants upper term sentence.

This is an appeal from a judgment after a jury found appellant Hyun Koo Kim liable for breach of contract, breach of implied warranty and negligence. Court affirm.

This is an appeal from an order denying a motion by appellant Hartford Casualty Insurance Company (Hartford) to disqualify the law firm representing respondents J.R. Marketing, L.L.C., Noble Locks Enterprises, Inc., Jane and Robert Ratto and Penelope Kane (collectively, respondents). court affirm.

Defendant was found guilty of receiving stolen property and admitted an allegation of a prior prison conviction. On appeal he contends that the court improperly prohibited testimony regarding his prior alcohol blackouts, improperly instructed the jury regarding voluntary intoxication, and sentenced him to an aggravated term in violation of the principles enunciated in Cunningham v. California (2007) 549 U.S., [127 S.Ct. 856, 868-871] (Cunningham). Court find no error and affirm.

J.C. (appellant) appeals after the juvenile court sustained an allegation of assault with a firearm in a juvenile wardship petition (Welf. & Inst. Code, 602) and committed him to the Department of Juvenile Justice (DJJ) (formerly the California Youth Authority). On appeal, he contends the court abused its discretion when it committed him to DJJ because there is insufficient evidence of probable benefit to him from the commitment. Court affirm.

Appellant James C. was declared to be a ward of the juvenile court under Welfare and Institutions Code section 602 after the court sustained allegations that he committed an attempted second degree robbery. (Pen. Code, 664/211, 212.5, subd. (c).) The court ordered placement in a court-approved home or institution for a maximum term of three years. (See Welf. & Inst. Code, 726, subd. (c).) Although appellant originally challenged his maximum term of confinement as greater than that permitted for attempted second degree robbery, he has withdrawn that argument in his reply brief and concedes the three-year maximum term was appropriately set. The concession appears appropriate, although not for the reason contemplated by the parties.
The case is remanded to the juvenile court for a calculation of predisposition custody credits. The judgment is otherwise affirmed.

This appeal presents a claim that the trial court erred when it denied a motion to strike brought under Code of Civil Procedure section 425.16, and refused to dismiss a defamation action as a Strategic Lawsuit Against Public Participation (SLAPP suit). Court affirm.

Plaintiff and respondent Rita Parnala (Parnala) filed suit against defendant and appellant Plycon Transportation Group, Inc. (Plycon) and an individual employed by it,[1] alleging sexual discrimination and harassment. Prior to the trial date, Plycon tendered an offer of compromise pursuant to Code of Civil Procedure section 998.[2] The offer stated that Plycon would, to settle the case, pay Parnala $60,000 in exchange for a dismissal with prejudice. The offer was silent regarding the payment of attorney fees or costs. Parnala accepted the section 998 offer. After payment of the $60,000, Parnalas counsel filed a motion seeking both attorney fees and costs, a motion which, as modified in terms of amount, the trial court granted. Plycon then filed a motion pursuant to section 473 to set aside that award. The trial court denied the motion and Plycon appeals from that order. Court agree with the trial court and affirm its order.

After the juvenile court sustained a third supplemental petition (Welf. & Inst. Code, 602) alleging that Steven M. had committed a battery with injury upon a peace officer (Pen. Code, 242, 243, subd. (c)(2)), appellant appealed from the judgment contending that there is insufficient evidence to sustain the conviction. Court affirm.

Anthony Hamilton appealed from the judgment entered following a court trial in which he was convicted of voluntary manslaughter. (Pen. Code, 192, subd. (a).) Sentenced to the upper term of 11 years, he contended his sentence violated the Sixth Amendment to the United States Constitution under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely). On April 21, 2005, we filed our opinion reversing the sentence and remanding the matter to the trial court for further proceedings. On July 13, 2005, a petition for review was granted by the California Supreme Court, and on September 7, 2005, the matter was transferred to this court with directions to vacate our decision and to reconsider the cause in light of People v. Black (2005) 35 Cal.4th 1238. On October 20, 2005, we issued an opinion concluding, in light of Black, Court found no constitutional error in sentencing.

Juan Fernando Lopez appealed from the judgment entered following a jury trial in which he was convicted of forcible rape, count 1 (Pen. Code, 261, subd. (a)(2)); forcible oral copulation, count 2 (Pen. Code, 288a, subd. (c)(2)); three counts of corporal injury to a cohabitant/childs parent, counts 3, 6, 7 (Pen. Code, 273.5, subd. (a)); assault by means likely to produce great bodily injury, count 5 (Pen. Code, 245, subd. (a)(1)); assault by means likely to produce great bodily injury and with a deadly weapon, count 8 (Pen. Code, 245, subd (a)(1)); and false imprisonment by violence, count 9 (Pen. Code, 236) with the further finding that in the commission and attempted commission of the forcible rape and forcible oral copulation, appellant personally used a firearm, to wit, a handgun within the meaning of Penal Code section 12022.53, subdivision (b); and that in the commission of one count of corporal injury, appellant personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). In a bifurcated proceeding, the court found that appellant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). Appellant was sentenced to prison for a total of 46 years and contended the forcible rape conviction must be reversed because the trial court failed to sua sponte instruct on the necessarily included offenses of assault and battery and that the court committed sentencing error. Court issued an opinion on March 30, 2006, affirming the judgment.

Channa Tho appealed from a judgment entered following a jury trial in which he was convicted in count 2 of second degree robbery (Pen. Code, 211) and in count 3 of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)) with the finding as to count 2 that he personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b) and the finding by the court that appellant served two prior prison sentences within the meaning of Penal Code section 667.5, subdivision (b).[1]Appellant was sentenced to a total of 17 years in prison comprised of the upper term of five years for count 2, plus a consecutive term of 10 years for the firearm use and a consecutive one-year term for each prior prison term enhancement. For count 3, the court selected the middle term of two years to run concurrent with the sentence in count 2. Appellant contended he was unfairly prejudiced by the prosecutors assertion of irrelevant and inflammatory matter, that he received ineffective assistance of counsel, that the order for restitution was invalid, and that imposition of the upper term on his robbery conviction violated his Sixth and Fourteenth Amendment rights to a jury trial and due process. On September 20, 2006 Court issued an opinion affirming the judgment. As Court did in our original opinion, Court affirm the judgment.

Cottrell Barbee (appellant) appeals from the judgment denying his petition for writ of administrative mandate (Code Civ. Proc., 1094.5), which sought to set aside a decision of the Personnel Commission (commission) of the Los Angeles Unified School District (LAUSD) imposing discipline on appellant, a classified employee of LAUSD. Appellant advances the following contentions: (1) a conclusion that none of the sustained charges justified the alleged causes for discipline precluded imposition of discipline; (2) the commission exceeded its jurisdiction by imposing suspension in addition to demotion; (3) the conclusion that plaintiff drank on the job is unsupported by the findings; and (4) petitioner did not receive a fair trial because the hearing officer refused to enforce subpoenas and admitted forged documents and apparently coerced testimony.
Court find no merit in these contentions, and affirm the judgment.