CA Unpub Decisions

Court deny a motion to dismiss an appeal upon concluding that appellant has standing to appeal as a party aggrieved by the judgment. (Code Civ. Proc., 902.) Court express no opinion on the merits of the appeal.

Plaintiff (Murphy) appeals from an order of the Alameda County Superior Court granting summary judgment in favor of defendants City of Alameda (City), City Council of the City of Alameda (City Council), and Planning Board of the City of Alameda. He asserts the trial court erred in concluding that a city ordinance authorizing the construction of work/live studios does not violate a city charter provision that prohibits the construction of multiple dwelling units. Court conclude there was no error, and therefore, Court affirm.

In these child dependency proceedings, the mother, Michelle H., appeals from an order terminating her parental rights as to two of her children and limiting her right to make decisions as to a third child. Court affirm.

Appellant appeals from a civil judgment entered in favor of respondent Alliance Imaging following a jury trial. Appellant contends that the trial court erred in instructing the jury on the issue of causation. Court conclude that, because the jury determined that respondent was not negligent and, therefore, it did not reach the issue of causation, any claimed error was not prejudicial and is harmless.

Plaintiffs Raymond Reudy and Kevin Hicks sued defendants O.K. Investments, Inc. (OKI) and Homayoun Naimi in connection with two wall signs for outdoor advertising. Among other claims, plaintiffs alleged that the signs did not comply with San Francisco ordinances and sought an injunction against their illegal use. OKI cross-complained. The trial court agreed that the signs were illegal and granted an injunction and attorney fees to plaintiffs, but the court also found for OKI on its cross-complaint. Plaintiffs appealed, but defendants did not. In an earlier decision, this court reversed the trial courts award on the cross-complaint but otherwise left its judgment intact.
While the matter was pending on appeal, Business and Professions Code section 5466, subdivision (a) was enacted. Although defendants now contend that section 5466 defeats plaintiffs claim for injunctive relief, the statute was not raised on the earlier appeal. After remittitur, plaintiffs submitted a proposed amended judgment to conform to our ruling. Only after the amended judgment was entered did defendants, for the first time, seek relief under section 5466, filing a motion to vacate the amended judgment under Code of Civil Procedure section 663. The trial court denied that aspect of the motion to vacate. Court affirm.

After the juvenile court held a hearing on a petition for modification filed by appellant Barney L.the father of Barry L., it modified its prior order in a different manner, implementing a recommendation from respondent San Mateo County Human Services Agency. (See Welf. & Inst. Code, 388.) Barney appeals, contending that the court violated his due process rights by modifying its prior order without providing him with sufficient advance notice of the proposed modification. Court affirm the order.

Appellant Brandon W., a minor, contends that the juvenile court abused its discretion by committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ, formerly, the California Youth Authority, or the CYA) and that it erred in its calculation of his presentence custody credits. Court affirm the lower courts judgment regarding appellants commitment, and modify the calculation of his custody credits.

Appellants Jon Green and Green Right OWay Constructors appeal from a order denying their petition for a writ of mandate. They contend the trial court applied the statute of limitations incorrectly. Court disagree and affirm.

Counsel appointed for defendant Heriberto Macias has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was informed of his right to file a supplemental brief, but he elected not do so. Court have conducted that review, conclude there are no arguable issues, and affirm.

Richard R. Blake, appearing in propria persona, filed this appeal from the judgment in a marital dissolution proceeding initiated by his former wife, Rachelle A. Blake. Rachelle filed a motion to dismiss this appeal, which we denied, but she has not filed a respondents brief. Court affirm.

Court reject Samuel Verdins challenge to his conviction for the attempted murder of his cousin. Court also reject Paymen Parvizis challenge to his conviction for assault by means likely to produce great bodily injury (of Verdins cousin), being a felon in possession of a firearm, and evading a police officer. Neither appellant demonstrates prejudicial error. Court affirm both judgments.

Plaintiffs and appellants Maryann Gallagher and Blake Brown bought a new Mercedes-Benz ML430. Defendant and respondent Mercedes-Benz USA (Mercedes-Benz ) distributes the ML430. Plaintiffs car experienced, among other things, a series of stalling episodes. After some or all of those episodes, defendant and respondent Calabasas Motorcars, Inc. (Calabasas), serviced plaintiffs car. Based on a claim their ML430 is defective, plaintiffs demanded a refund under the Song-Beverly Consumer Warranty Act (Song-Beverly Act). When defendants refused, plaintiffs sued Mercedes-Benz and Calabasas for a violation of the act and for fraud. The trial court directed a verdict in defendants favor on the fraud claims, and the jury found in defendants favor on the claim under the act. With respect to their claims under the act, plaintiffs primary contention concerns the admission of evidence that they bought a service contract, rather than an extended warranty, after the cars original warranty expired. Plaintiffs contend that the trial court prejudicially erred in admitting that evidence and by failing to instruct the jury that defendant had the burden of proving the existence of the service contract. Additionally, they contend that the court erred in excluding evidence of other consumer complaints about the ML430. We hold that no error occurred, and Court therefore affirm the judgment on the claims brought under the act.

Frederico Y. appeals the juvenile court orders granting a petition for modification (Welf. & Inst. Code, 777) and committing him to the California Youth Authority (CYA). He contends that a remand is necessary under In re Angela M. (2003) 111 Cal.App.4th 1392 (Angela M.), to determine the need for an evaluation of special educational needs. Like the Angela M. court, Court affirm the order of commitment but remand the matter to the juvenile court for a determination whether a special needs evaluation should be conducted. (Id. at p. 1394.)

Charles David Venzor, Jr. appeals his conviction, by jury, of the forcible rape (Pen. Code, 261, subd. (a)(2)), and sodomy by force ( 286, subd. (c)(2)), of K.M. The jury further found that appellant inflicted great bodily injury on K.M. during both crimes. In the bifurcated portion of the trial, at which appellant waived jury, the trial court found that appellant was eligible for sentencing on the rape count pursuant to section 667.61, subdivision (a) because he had a prior conviction of sexual penetration with a foreign object. ( 289, 667.61, subd. (c),(d)(1).) The trial court further found that appellant had three prior serious or violent felony convictions within the meaning of the Three Strikes Law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), that he had one five-year prior serious felony conviction ( 667, subd. (a), 1192.7, subd. (c)(25)), and that he had served three prior prison terms. ( 667.5, subd. (b).) As a result, it sentenced appellant to a total term in state prison of 29 years plus 75 years to life.[2]
Appellant contends evidence of two prior sex offenses should have been excluded pursuant to Evidence Code sections 352 and 1101, subdivision (b), that admission of the evidence pursuant to Evidence Code section 1108 violated his rights to due process, equal protection and a fair trial, that the sodomy conviction should be reversed because the trial court erred in answering questions posed by the jury during its deliberations, and that the trial court failed to make the factual findings required to impose five-year enhancements pursuant to section 667, subdivision (a). In light of Cunningham v. California ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], the trial court's imposition of the upper sentence term on the sodomy count must be reversed and the matter remanded for resentencing. In all other respects, the judgment is affirmed.