CA Unpub Decisions

Plaintiff (Pollard) claimed that he suffered from asbestosis caused by exposure to Unibestos, a product distributed by defendant Metalclad Insulation Corp. (Metalclad). Metalclad contended that Pollard did not have any asbestos related injury and, if he did, it was not from exposure to Unibestos. A special jury verdict determined that Unibestos had a design defect, that there was a failure to warn, and that Metalclad was negligent. That same verdict three times answered no to the question whether the defect, failure, or negligence was a legal cause of injury to Pollard.
On appeal Pollard asserts that there was substantial evidence to the contrary and that the trial court committed error in two evidentiary rulings. Court conclude that substantial evidence supports the special verdict and that neither evidentiary contention has merit. Accordingly, court affirm.

Appellant is the mother of seven-year-old Charles B., a dependent child of the juvenile court. Mother appeals from an order terminating her parental rights. (Welf. & Inst. Code, 366.26.) She contends that termination of her parental rights would substantially interfere with Charless relationships with his siblings, and that the juvenile court erred by denying her request for an updated adoption assessment. Court disagree with these contentions for the reasons set forth below.
Mother also contends that respondent Contra Costa County Department of Children and Family Services (Department) and the juvenile court did not comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Court agree with this contention and reverse. Based on the information in the record on appeal that was before the juvenile court at the time it reviewed the sufficiency of the ICWA notice, the court erred by finding the notice was sufficient. Court order a limited remand, as court explain below.

A class action complaint alleged that a bank sold confidential credit cardholder information to third party vendors. The class representatives and bank reached a settlement, and the trial court approved the settlement over the objections of a consumer organization and a small number of individual class members. The objectors primary contention is that the settlement is unfair because it commits the entire monetary recovery of $5 million (less costs of class notice) to educational and charitable organizations, without providing any direct compensation to class members. Court conclude that the trial court did not abuse its discretion in approving as fair and adequate the settlement agreement given the impracticability of direct compensation to a potential class of several million people.

Defendant Carmen H. appeals from a jurisdictional and dispositional order of the juvenile court adjudging her now 15 year old son, Vaughn, a dependent child pursuant to Welfare and Institutions Code section 300, subdivision (b). She contends the dependency petition failed to state a cause of action and that there was insufficient evidence for the court to assume jurisdiction over the minor. Court affirm.

Joseph S. appeals from his adjudication as a ward of the court. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (Nov. 27, 2006, S133114) Cal.4th [2006 Cal. Lexis 15095]; People v. Wende (1979) 24 Cal.3d 436; see Smith v. Robbins (2000) 528 U. S. 259.) Upon independent review of the record, court conclude that no arguable issues are presented for review, and affirm the judgment.

Jennifer L. (Mother) and Ken L. (Father) challenge an order of the Napa County Superior Court, Juvenile Division, which set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for Charles L. (born August 2000). Court deny their petitions on the merits.

Jesus Valdez sued his former employer, respondent Lennox Hearth Products, bringing causes of action related to his employment and the termination of his employment. Lennox Hearth's motion for summary judgment was granted and judgment was entered in its favor. In B171364, we reversed that judgment, finding that there was a triable issue of fact on a single the cause of action, the cause of action for breach of contract. We noted that on appeal, but not in the trial court, Lennox Hearth argued that the cause of action was pre-empted by the federal Labor Management Relations Act. Court held that "Issues not raised in the trial court cannot be raised for the first time on appeal." (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) This question must be addressed to the trial court. The judgment is affirmed.

The marriage of petitioner Mercedes Nakamoto and respondent Luis Nakamoto ended with a judgment of dissolution in 2001. The judgment provided that a family owned business, Super Pollo I, would be co-owned by the parties. Mercedes was allowed to run Super Pollo I and had the right to purchase Luiss interest within four years. The judgment further provided that the businesss accounting was to be handled by White, Zuckerman, Warsavsky, Luna, Wolf & Hunt (White Zuckerman), and if Mercedes exercised the buyout provision, the value of Luiss interest would be determined by an appraisal performed by White Zuckerman.
When Mercedes tendered payment to purchase the business in 2004 pursuant to an appraisal by White Zuckerman, Luis objected to the amount of the appraisal and refused to complete the sale. Luis appeals from the trial courts postjudgment order determining that the appraisal was valid and the sale was to be completed in accordance with the judgment of dissolution. In this appeal, Luis argues: (1) the trial courts order appointing White Zuckerman at the time of the dissolution judgment in 2001 was error because of a lack of evidence the firm was qualified to prepare the appraisal; (2) the order appointing White Zuckerman was deficient because the order did not detail how White Zuckerman was to conduct the appraisal; and (3) the trial court erred by enforcing the buyout provision of the judgment based upon the appraisal of White Zuckerman.
Court hold the first and second contentions were forfeited by Luiss agreement to the terms of the judgment and his failure to appeal from the judgment in 2001. Court further hold the trial court properly construed the judgment of dissolution to mean the White Zuckerman appraisal was binding on the parties and enforcement of the buyout provision was proper.

Michael Butler appeals from the judgment entered after a jury convicted him of two counts of committing a lewd or lascivious act on a child under the age of 14 years and found the acts to have been committed on more than one victim. He was sentenced to two current terms of 15 years to life in state prison. Butler contends the court erred by instructing with CALJIC No. 2.20.1 and by sentencing him to life terms under Penal Code section 667.61. Court affirm.

Norberto Arredondo petitions this court for a writ of habeas corpus vacating his conviction for assault with a deadly weapon based on ineffective assistance of counsel. Court remand this matter to the superior court for appointment of a referee to take evidence about the reasons Arredondos defense counsel did not call certain witnesses.

After her neighbor, defendant and appellant Leonard Drake (defendant), physically beat and threatened to kill her in the garage of their apartment complex, plaintiff and respondent Margaret Monos (plaintiff) petitioned the trial court for a restraining order against defendant. Although he had notice of the hearing on plaintiffs petition, defendants attorney failed to appear on the day of the hearing. The trial court proceeded without defendants attorney, and issued a permanent restraining order that, inter alia, required defendant to vacate his residence next door to plaintiff within 60 days. The trial court subsequently denied defendants motion to set aside the restraining order under Code of Civil Procedure section 473, subdivision (b).
Defendant appeals from the restraining order, arguing that the trial court denied him the statutorily required hearing and opportunity to present evidence by proceeding without his attorney. He also contends that there was insufficient evidence under the clear and convincing statutory standard to support the trial courts issuance of the restraining order.
Court hold that because it is undisputed that defendant had notice of the date and time of the hearing on plaintiffs petition for a restraining order, he had a full and fair opportunity to appear and be heard. Court also hold that there was substantial evidence of the claimed harassment under the clear and convincing evidence standard. court therefore hold that the trial court did not abuse its discretion in issuing the permanent restraining order, and affirm that order on appeal.

Appellant Thomas Vaught was convicted, following a jury trial of one count of second degree robbery in violation of Penal Code section 211, one count of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) and one count of second degree commercial burglary in violation of section 459. The jury found true the allegations that appellant personally used a firearm in the commission of the robbery within the meaning of section 12022.53, subdivision (b) and that a principal was armed in the commission of the burglary within the meaning of section 12022, subdivision (a)(1). The trial court found true the allegations that appellant had previously suffered a serious felony conviction within the meaning of section 667, subdivision (a), and three prior felony convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12 ("the "three strikes" law) and had served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a term of 25 years to life in state prison for the robbery conviction pursuant to the three strikes law, plus a consecutive 10 year term for the section 12022.53 firearm enhancement and a 5 year term for the section 667, subdivision (a) enhancement. The trial court sentenced the remaining two counts concurrently.
Appellant appeals from the judgment of conviction, contending that the trial court erred in failing to stay the sentence on the count 3 burglary conviction pursuant to section 654. Appellant also contends that the abstract of judgment should be corrected to reflect the correct statutory basis for the firearm enhancement to count 3. Respondent agrees with these contentions. Court order the count 3 sentence stayed and the abstract of judgment corrected to reflect that the one year enhancement for count 3 was imposed pursuant to section 12022, as set forth in more detail in our disposition. Court affirm the judgment of conviction in all other respects.

Defendant, a licensed attorney and cattle rancher, was charged with seven counts of felony cruelty to animals (Pen. Code, 597, subd. (b); undesignated section references are to the Penal Code). All counts alleged that defendant unlawfully deprived animals of necessary sustenance and water on or about December, 2001 count 1 as to livestock generally, count 2 as to an individual bull, and counts 3 through 7 as to individual calves.
A jury convicted defendant on counts 1, 3, 4, 5, and 7, but acquitted him on counts 2 and 6. The trial court denied defendants motion for new trial, then sentenced him to five years probation.
Defendant appeals in propria persona, renewing several grounds raised in his motion for new trial: (1) The trial court was so consistently biased against defendant that it [a]cted as a [s]econd [p]rosecutor. (2) The trial court erred prejudicially by prohibiting the testimony of defendants key expert witness. (3) The prosecutor committed misconduct. Defendant also contends the trial court erred by refusing to reduce his felony convictions to misdemeanors and by denying his motion for new trial. Lastly, he contends he has been unconstitutionally deprived of citizenship rights for criminal conviction under a negligence standard.
court conclude the trial court abused its discretion by excluding defendants key expert as a discovery sanction without properly considering whether a lesser sanction would suffice. Moreover, because the case turned on a battle of the experts, we cannot find the error harmless beyond a reasonable doubt. Therefore, Court reverse. In light of this conclusion, we do not reach defendants other claims of error.

In this case, we reject attorney Victor Gonsalvess factually and legally unsupportable assertion that the state court lost jurisdiction to dismiss a Placer County case with prejudice once a Sacramento County case based on similar allegations was removed to federal court. No stranger to this court, Gonsalves (plaintiff) appeals the order of dismissal with prejudice of one of his many lawsuits against defendant Conseco Insurance Company after the court sustained defendants demurrer and plaintiff failed to file a timely amendment, then voluntarily dismissed the case. Court reject not only his jurisdictional argument, but the hopeless attempts he makes to save his Placer County action on the merits. Court affirm.