CA Unpub Decisions

Linda Nacif sued her former boyfriend, J. Ross White-Sorenson, and his corporation (Grupo Americas, Inc. (Grupo)), alleging White-Sorenson failed to repay a $258,000 loan. The trial court entered a default and a default judgment against White-Sorenson and Grupo. In the judgment, the court: (1) awarded Nacif $153,750 plus attorney fees and interest; (2) declared an equitable mortgage on property owned by White-Sorenson (the Sorenson property); (3) declared that all interests on the Sorenson property acquired after Nacif recorded a lis pendens "are forever barred and foreclosed from all equity of redemption"; and (4) ordered the Sorenson property sold in a foreclosure sale. Court affirm the court's order vacating the default judgment as to White Sorenson and Grupo, and permitting Accredited to intervene in the action. Court reverse the court's order vacating the entry of default as to White Sorenson and Grupo. The parties to bear their own costs on appeal.

In April 2005, the People charged Don R. Harris with caretaker theft from an elder (Pen. Code, 368, subd. (e))[1] (count 1), theft from an elder ( 368, subd. (d)) (count 2), grand theft ( 487, subd. (a)) (count 3), perjury by declaration ( 118, subd. (a)) (count 4), and attempted child abduction ( 278.5, subd. (a)) (count 5). The People also alleged that Harris had previously suffered a prior strike conviction ( 667, subds (b)-(i), 668, 1170.12). A jury found Harris guilty of counts 1 and 4, and not guilty of counts 2, 3, and 5. After the jury returned its verdicts, Harris admitted the prior strike allegation. In the present appeal, Harris contends that the trial court abused its discretion in refusing to strike the prior strike conviction. Court affirm the judgment.

Defendant Cory Massiet appeals a judgment sentencing him to four years in state prison following convictions of driving under the influence of alcohol, having a measurable blood alcohol content of 0.08 percent or more, and a true finding he had been previously convicted of a serious or violent felony (strike). On appeal, Massiet contends the double jeopardy clause of the United States and California Constitutions barred retrial of his prior strike conviction allegation, which doubled his sentence.
The judgment is affirmed.

After violating his parole, Cassius Kim Collins was sentenced to six years in prison for a 1986 conviction of committing a lewd and lascivious act upon a child under the age of 14. (Pen. Code, 288, subd. (a).)[1] Collins appeals, contending the court violated the terms of his 1986 plea bargain agreement when it committed him to prison without first ordering a diagnostic examination under section 1203.03. Court affirm the judgment.

After being charged with a misdemeanor count of willfully and unlawfully resisting, delaying and obstructing a peace officer (Pen. Code, 148, subd. (a)(1)), Andrew Bailey filed a Pitchess motion seeking discovery of information in a police officer's personnel file. Bailey claimed that statements in the police report regarding his detention near San Diego State University (SDSU) for Vehicle Code violations by SDSU police officer M. Duncan were false, and accordingly sought information from Duncan's files and records with the SDSU police department about prior complaints of falsifying police reports and other related acts reflecting on Duncan's dishonesty. The trial court denied the motion, finding that Bailey's moving papers failed to present a sufficient "factual scenario" showing good cause to warrant in camera review of Duncan's personnel records.
Bailey filed this petition for writ of mandate challenging the court's ruling after the Appellate Division of the San Diego Superior Court (Appellate Division) summarily denied his petition for writ of mandate in that court. Bailey contends that the general allegations in his counsel's declaration were sufficient to meet the low threshold for establishing good cause for discovery and that the court's denial of in camera review of those records was thus an abuse of discretion. Court requested a response from the real party in interest, the Board of Trustees of California State University (CSU), and subsequently issued an order to show cause (OSC). Court conclude the court abused its discretion in denying Bailey's request for in camera review. Accordingly, Court grant the writ petition.

Neil Samuel Heddings appeals his conviction of involuntary manslaughter (Pen. Code, 192, subd. (b)), a lesser included offense of the charged crime of murder ( 187, subd. (a)). The court sentenced him to a six-year term, which was the three-year middle term doubled because Heddings admitted a prior strike conviction.
Heddings contends his conviction must be reversed because (1) the jury's acquittal of the charged count of assault on a child by means of force likely to produce death ( 273ab) necessarily acts as an acquittal of the charged murder/involuntary manslaughter count, and (2) the instructions on aiding and abetting were erroneous. Court affirm the judgment.

Anelia G. appeals from orders terminating her parental rights (Welf. & Inst. Code, 366.26) to her sons. She contends the court erred by rejecting her argument that termination would be detrimental to the children. On review, Court affirm.

A modification decision.

this case we review a judgment in a lawsuit between a commercial seller and a commercial buyer over rejected merchandise. Accordingly, Court begin with a quick review of some relevant UCC provisions. Court affirm the judgment that the seller take nothing by way of its suit.

Pursuant to California Rules of Court, rule 8.452, Arturo B., seeks review of the order scheduling a permanency planning hearing for his son, Jermaine B. (Welf. & Inst. Code, 366.26.)[1] Due to his criminal record, Arturo was deported to Mexico before Jermaine was detained. Arturo has remained in Mexico throughout these proceedings, has outstanding arrest warrants in the United States, and has no intention of returning. Although Arturo participated in services in Mexico, including counseling, parenting, and drug testing, he has had no visits with the child and has no parental relationship with him. Child welfare authorities in Mexico eventually found Arturo to be an inappropriate placement for Jermaine. In this proceeding, Arturo contends: (1) there is insufficient evidence to support the juvenile courts detriment finding; and (2) services were not reasonable because the Orange County Social Services Agency (SSA) should have transported Jermaine to Mexico for visits. Court find no error and deny the petition.

Following a jury trial in December 2004 on a petition filed to extend appellant's commitment as a sexually violent predator, the court committed appellant to the custody of the State Department of Mental Health pursuant to Welfare and Institutions Code section 6604 for a two-year term. We appointed counsel to represent appellant in this court. Appointed counsel filed an opening brief which states the case but raises no specific issues. Appellate counsel has asked that this court, pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, review the entire record to determine whether it may contain arguable issues on appeal. Court conclude that Wende review is not required in civil commitment proceedings under the Sexually Violent Predator (SVP) Act. Accordingly, Court dismiss the appeal.

Appellant Seth Emerdinger (Emerdinger) was injured in August 2001 while he was tubingbeing towed by a motorboat while holding onto an inner tubein the Sacramento Delta. He alleged that his leg became entangled in the tow rope as a result of the boat driver turning too sharply. Emerdinger sued the owner of the boat, Howard Teng, and his son Michael Teng (a passenger), claiming that they were both negligent. Teng moved for summary judgment, arguing, inter alia, that they owed no duty to Emerdinger. They claimed that the law limited liability of a coparticipant for injuries sustained in a vigorous sport such as tubing to intentional and reckless misconduct; as a matter of law, therefore, Teng owed no duty to Emerdinger under the doctrine of primary assumption of the risk. The trial court agreed and granted Tengs motion for summary judgment. On appeal, Emerdinger argues that the doctrine is inapplicable under the circumstances here because neither Howard nor Michael actually operated the boat at the time of the incident and were therefore not participants in the tubing endeavor. Court conclude that the primary assumption of the risk doctrine does apply here and that the negligence action was therefore not maintainable against Teng. Accordingly, Court affirm the judgment entered on the order granting summary judgment.

Anthony Merlo sued the City of Palo Alto (City), alleging that in 2005 it improperly conducted an election approving an increase in storm drain fees. The essence of his claim is that the proposed storm drain increase constituted an assessment under article XIII D of the California Constitution (hereafter article XIII D), and, as such, certain mandatory election procedures were not followed by City. The court sustained without leave to amend Citys demurrer to the third amended complaint (Complaint). Thereafter, Merlo filed a dismissal without prejudice of the action and initiated this appeal.

Merlo contends that the court should not have sustained the demurrer to the Complaint without leave to amend. He argues that the court erred in granting Citys request for judicial notice and that it improperly relied on the documents of which it took judicial notice to conclude that the Complaint failed to state a cause of action. He argues further that he stated a cause of action challenging the 2005 election because the proposed storm drain fee increase was an assessment, rather than a property-related fee, and City failed to comply with the required procedures for an election concerning a proposed assessment.
Court conclude that the trial court did not err or abuse its discretion in granting Citys request for judicial notice. Court hold further that the Complaint failed to state a cause of action and that Merlo did not demonstrate a reasonable probability that he could amend to state a viable cause of action. Accordingly, Court affirm the dismissal entered on the order sustaining demurrer without leave to amend.

Defendant Antoine Ardds appeals from the judgment below. Court reverse his conviction on count one as both defendant and the Attorney General request, and affirm the judgment in all other respects.