CA Unpub Decisions

Marcus S. appeals from the trial courts order denying his Welfare and Institutions Code section 388 petition requesting unmonitored visitation and eventual custody of his son, and its subsequent order terminating his parental rights. Court find no error and affirm.

In this action which centers on competing claims to a condominium unit, Gloria Elvira seeks writ relief after the trial court sustained without leave to amend demurrers to numerous causes of action in her complaint against her daughter, Wendolyn Elvira, and several other defendants. In sustaining the demurrers, the trial court concluded the claims were barred by (1) the applicable statutes of limitations, and (2) the doctrine of judicial estoppel. Court conclude Gloria is entitled to relief. Accordingly, Court grant her petition.

Defendant was convicted after a jury trial of driving under the influence of drugs causing injury (Veh. Code, 23153, subd. (a)). The jury further found defendant had caused great bodily injury to the victim (Pen. Code, 12022.7, subd. (b)). Defendant admitted he had a prior conviction for driving under the influence of drugs (Veh. Code, 23540). The trial court sentenced defendant to the upper term of three years in state prison and five years for the great bodily injury enhancement, for a total of eight years in state prison. Defendant appeals. He contends his right to due process and his privilege against self-incrimination were violated when the trial court permitted the prosecutor to impeach him with his prior testimony on cross examination. He also contends his upper term sentence violates the principles of Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413] (Blakely). Court affirm.

Plaintiffs Lloyd L. Phelps, Jr., Gary Phelps, Joey P. Ratto, Jr., and Ronald D. Conn farm land on Upper Roberts Island in the Sacramento-San Joaquin Delta (Delta) under licenses issued by defendant State Water Resources Control Board (SWRCB). The SWRCB imposed civil penalties against plaintiffs pursuant to Water Code section 1052 for unauthorized diversion of water in 2000 and 2001.[1] (State Water Resources Control Bd. Order No. WRO 2004-0004, adopted Feb. 19, 2004 (Order WRO 2004-0004).) Plaintiffs filed a petition for writ of mandate and complaint for declaratory relief which challenged Order WRO 2004 0004 on numerous grounds. The court denied all requested relief and plaintiffs appeal. Court conclude most of plaintiffs claims are time barred under Water Code section 1126, and the courts other findings are supported by substantial evidence. Court therefore affirm the judgment.

The information alleged that defendant personally inflicted great bodily injury under circumstances involving domestic violence in the commission of counts two and three. A jury found defendant guilty of count one and count two (finding the special allegation not true). As to count three, the jury found him guilty of the lesser included offense of assault (to which the special allegation does not apply). He was acquitted on count four. Based on these convictions, the trial court found defendant in violation of his probation in two unrelated cases (cases Nos. 03F03968 and 01F02218). Defendant was sentenced to state prison for six years, consisting of four years on case No. 03F03968 plus one year each on current counts one and two. Sentence on current count three was stayed pursuant to Penal Code section 654. On appeal, defendant contends his convictions on counts one and two must be reversed because: (1) the jury returned acquittals on lesser included offenses to those counts; (2) the trial courts comments to the jury following its return of the acquittals improperly directed it to return verdicts of guilty; and (3) the courts failure to record the acquittals violated his federal due process rights. In the alternative, he claims the consecutive sentences on counts one and two violate the principles of Cunningham v. California (2007) 549 U.S. [166 L.Ed.2d 856] and its antecedents, and thus must be modified to run concurrently. Court affirm the judgment.

Petitioner Blufford Hayes, Jr., awaits retrial in a special circumstances murder case. His attorney, Richard Such, filed an application to have second counsel appointed to assist in the defense, but the trial court denied that request. After Court denied counsels petition for writ of mandate, the California Supreme Court granted review and ordered us to issue an alternative writ.

Defendant Aaron Amos McCray was charged with inflicting corporal injury on a cohabitant and with making criminal threats. A jury found defendant not guilty of inflicting corporal injury but guilty of making criminal threats. The court also found true four prior prison terms and sentenced defendant to an aggregate term of six years in state prison. Defendant appeals his conviction, claiming there was insufficient evidence to convict him.

In this breach of warranty action, defendant National RV, Inc. (National) appeals a judgment entered in favor of plaintiffs Gerald and Marlene Deitrick[1]after a jury trial, and a postjudgment order awarding the Deitricks statutory attorney fees. National contends the judgment is unsupported by substantial evidence as the Deitricks produced no evidence of the fair market value of their motor home in its defective state. We agree, as the Deitricks' only evidence on damages was Marlene's opinion as to the value of the motor home to her, which is irrelevant in determining fair market value. court reverse the judgment and direct the court to enter judgment for National. Court also reverse the attorney fees order as the Deitricks are no longer prevailing parties.

The juvenile court made a true finding that Gabriel P. possessed a deadly weapon (Pen. Code, 12020, subd, (a)(4)). The court committed Gabriel to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (the Department) and set a maximum term of confinement of four years four months. Gabriel contends the trial court abused its discretion under Welfare and Institutions Code section 731, subdivision (b) by setting his term of confinement at the statutory maximum. Court affirm the judgment.

Jane E. Ritzinger appeals a judgment entered in this action between her and William G. McKee, Inc. (McKee) arising out of McKee's purchase of Ritzinger's accountancy practice. Ritzinger contends that the court erred in declining to award her damages on her cross-claim against McKee for breach of the purchase contract and in failing to find that she was the prevailing party in the action for purposes of applying the contract's attorney fee provision. Court find her arguments unavailing and affirm the judgment.

In October 2005 a jury convicted Lou Vincent Lagrimas of two counts of committing lewd acts upon a child as to Jane Doe (Pen. Code, 288, subd. (a); counts 1 & 2); one count of continuous sexual abuse against Jane Doe ( 288.5, subd. (a); count 3); two counts lewd acts upon a child by a person 10 years older as to Jane Doe ( 288, subd. (c)(1); counts 4 & 5);[1]one count of lewd acts upon a child as to Mary Doe ( 288, subd. (a); count 7); one count of annoying or molesting a child as to Mary Doe ( 647.6, subd. (a); count 8); and one count of committing a lewd act upon a child as to Cathy Doe ( 288, subd. (a); count 9). Lagrimas appeals, asserting that the court erred in denying his motion for new trial because (1) he was denied effective assistance of counsel when his counsel failed to object to certain testimony that was inadmissible hearsay, lacked foundation, was speculative, constituted improper lay opinion, and called for a legal conclusion; (2) he was denied effective assistance of counsel when his trial attorney failed to object to the prosecutor's statements in closing argument referring to Jane, Mary and Cathy Doe as "victims" and failing to object to the prosecutors improper questions; (3) he was prejudiced when the judge hearing his motion for new trial was replaced because the trial judge had passed away; and (4) the verdict was contrary to the law and evidence. Court affirm the judgment
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In this lawsuit, Bahman Rashidian and his brother David Rashidian (together, the Rashidians) sued Nabil Nasre and his wife Suzan Nasre (together, the Nasres) for breach of contract and fraud arising out of an oral agreement allegedly made during a five to ten minute discussion in the courthouse hallway on the first day of trial in an earlier lawsuit. The parties attorneys did not participate in the discussion, and the oral agreement was never disclosed to them. The oral agreement purported to settle a prior dispute that already was the subject of settlement agreements and mutual releases, including a separate settlement agreement placed on the record in open court later that same day. The alleged oral agreement, though never placed in writing, contemplated the Nasres would convey two parcels of unidentified real property and pay the Rashidians money, and left nearly every other term open to future mediation. The trial court granted the Nasres motion for summary judgment on the ground the Rashidians opposing separate statement was so defective that it would be extremely difficult and time consuming for the court to determine which material facts were in dispute. The trial court also concluded that, if required to do so, it would grant the motion on the merits for many reasons. Court affirm.

Defendant Craig Ferguson (Ferguson) challenges the trial courts rulings (1) ordering partition by sale of the commercial property he jointly owned with plaintiff Soony C. Sandore,[1]instead of partition in kind, and (2) determining Ferguson had ousted Sandore from the property. Ferguson contends the evidence supported partition in kind; therefore, the trial court should have followed the presumption against partition by sale. He also contends the notice required for ouster was invalid because Ferguson was not in possession of the property at the time he received the notice, and Sandore sent the notice as trustee of the property owner, but sued as owner in her individual capacity. In her cross-appeal, Sandore challenges the trial courts finding that Ferguson and his wife, defendant Diane Ferguson, did not breach their agreement to lease the property, and contends the courts attorney fee award was arbitrary and an abuse of discretion. Court reject each of the foregoing contentions. Substantial evidence supported the trial courts determination that a partition by sale was more equitable than a partition in kind. Moreover, Fergusons contention that Sandores ouster notice was ineffective finds no support in any legal authority. Court also conclude substantial evidence supports the trial courts breach of contract determination, and that the trial courts attorney fee award was based on the trial courts proper exercise of discretion. Accordingly, Court affirm the judgment in its entirety.

In the division of property in this dissolution case, the trial court stuck the husband with two dubious investments he had unilaterally made, at the face value of his initial investment. In this appeal he challenges that aspect of the division, arguing that the trial court was required to divide the investments equally. Court affirm.