CA Unpub Decisions

Herbert H. appeals a judgment terminating his parental rights to his son, Christopher W. He contends removing Christopher from his care under Welfare and Institutions Code section 388 violated his rights to due process because the removal required the procedures and safeguards of section 387. (All statutory references are to the Welfare and Institutions Code.) He also asserts the court erred in not finding the exception to adoption of section 366.26, subdivision (c)(1)(A) applied to this case. Court affirm the judgment.

In these two consolidated appeals, defendant Moore Electric (Moore) appeals from an amended judgment after a bifurcated jury trial and court trial. Applicant hired Ron Burns Construction Company., Inc. (Burns) to provide construction services on two buildings. When Burns requested progress payments, Moore withheld 10 percent in retention amounts based on its position that Burns had breached the contract by not completing the work. Burns sued Moore to recover the retention amounts and Moore counter claimed. The jury and the court both found in favor of Burns.
In the first appeal, Moore charges the court erred concerning the jury instructions and Moores proposed special verdict. In the second appeal, Moore contends the court committed error in the bench trial. Court conclude substantial evidence supported jury findings that Burns completed the contracted work and that Moore was not entitled to withhold retention proceeds. There was no error in the bench trial. Court affirm the judgment.

Defendant Kenoth Bishop appeals from judgment entered following a jury conviction for resisting by means of force or violence an executive officer in the performance of his duty (count 1; Pen. Code, 69). Defendant admitted the truth of a prison prior ( 667.5, subd. (b)). The trial court sentenced defendant to four years in state prison, suspended the sentence, and placed defendant on three years probation, with one year in jail and participation in a 52 week anger management program. Defendant contends the trial court erred in admitting testimony of irrelevant, prejudicial prior acts; refusing to instruct on the lesser included offense of misdemeanor nonforcible resisting arrest ( 148); and instructing the jury with elements of an uncharged crime. Defendant complains of cumulative error. Court reject defendants contentions and affirm the judgment.

A modification decision.

After a contested jurisdictional hearing, the court found true allegations in a juvenile wardship petition that appellant committed an assault with a deadly weapon and by force likely to produce great bodily injury, and that during the commission of the offense appellant personally inflicted great bodily injury and personally used a dangerous and deadly weapon. (Pen. Code, 245, subd. (a)(1), 969, subd. (f), 192.7, subd. (c)(8).) The court rejected appellants defense that the stabbing was lawful because he justifiably acted in Anthonys defense.
Finally, he contends that section 707, subdivision (d)(5), is unconstitutional because the statutes intent is punitive and he was not afforded a jury trial. All of appellants arguments fail; Court affirm.

The court adjudged appellant, Erica L., a ward of the court (Welf. & Inst. Code, 602) after it sustained allegations charging her with vandalism (Pen. Code 594, subd. (a)). On August 21, 2006, the court placed Erica on probation until March 27, 2007, or until she made restitution. On appeal, Erica contends: 1) the court erred in admitting certain evidence; and 2) she was denied the effective assistance of counsel. Court affirm.

A modification decision.

A modification decision.

Janie Collins appeals from a defense verdict and judgment in her personal injury lawsuit against the San Mateo County Transit District (SMCTD). Because Collins has failed to produce an adequate record on any of the issues raised in her appeal, Court affirm the judgment.

John M. appeals from the juvenile courts finding that he committed a robbery and from the courts dispositional order of October 11, 2006. Appellants court appointed counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Upon independent review of the record, Court conclude that no arguable issues are presented for review and affirm the judgment.

Terrell Gardner appeals his conviction after his no contest plea to sale of marijuana. Counsel has briefed no issues and asks for record review of the proceedings that led to his conviction. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has not filed a supplemental brief. Court have reviewed the record and affirm.

Steven Joseph OBrien is facing criminal felony charges in the Marin County Superior Court. He was arraigned in Department C before Judge Michael Dufficy on April 18, 2007, and demanded a jury trial. The case was then transferred to Department K and reassigned for all purposes. On April 19, 2007, in Department F, with Judge Paul Haakenson covering for Judge Faye DOpal in Department K, the District Attorney filed a motion pursuant to Code of Civil Procedure section 170.6 to disqualify Judge DOpal.[2] The case was then transferred to Department C for reassignment. On April 19, 2007, in Department C before Judge Dufficy, petitioners case was transferred and assigned to Judge John Stephen Graham in Department D, and continued to April 25, 2007.
We have reached our decision after giving notice to all parties that Court might act by issuing a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners,Inc. (1984) 36 Cal.3d 171, 177 to 180.) The entitlement to relief is clear. (See Alexander v.Superior Court (1993) 5 Cal.4th 1218; Ng v. Superior Court (1992) 4 Cal.4th 29.) Accordingly, let a peremptorywrit of mandate issue commanding respondent court to vacate its order denying petitioners challenge pursuant to section 170.6 and to enter a new order granting that challenge. Court decision is final as to this court immediately. (See Cal. Rules of Court, rule 8.264(b)(3).)

Plaintiff Martin Bloom appeals from summary judgments in favor of defendants, Dennys Inc. (Dennys) and Elsinore Developers (Elsinore), in a negligence action arising from Blooms trip and fall outside a Dennys restaurant in Northridge, situated on property leased from Elsinore. The trial court ruled as a matter of law that the height differential of the walkway outside the entrance to the restaurant, where Bloom fell, constituted a trivial defect, insufficient to sustain a negligence claim. In so ruling, the court rejected plaintiffs argument that a presumption of negligence applied because of the walkways violation of a differential height regulation under the Americans With Disabilities Act, 42 U.S.C. 12000 et seq. (ADA). Court hold that the walkways height variance was not necessarily trivial as opposed to dangerous, and that there also was a triable issue concerning causation of Blooms injuries. Court therefore reverse the judgments.

Plaintiff Sunland Village Homeowners Association (the Association) appeals from the judgment entered in favor of defendant State Farm Fire & Casualty Company (State Farm) following the granting of State Farms summary judgment motion. The Association contends the court erred in granting the motion because genuine issues of material fact exist regarding State Farms adjustment of the Associations insurance claim filed in the aftermath of the Northridge earthquake. The Association further contends the court erred in awarding certain items of cost to State Farm. Court reverse and remand the costs order with directions to the court to vacate its order denying the Associations motion to tax costs. In all other respects, the judgment is affirmed.