CA Unpub Decisions

Father challenges orders of the Contra Costa County Superior Court, Juvenile Division, which set a hearing under Welfare and Institutions Code section 366.26 to select permanent plans for his six minor children. Court deny Fathers petition on the merits.

Petitioner, mother of Sophia A. (now nine years old) and Sonia A. (now seven years old), seeks review by extraordinary writ, pursuant to California Rules of Court, rule 8.452, of the juvenile courts findings and orders, in which the juvenile court set the matter for a permanency planning hearing, pursuant to Welfare and Institutions Code section 366.26. Petitioner contends (1) the juvenile court abused its discretionwhen it found, at the 18-month status review hearing, that reasonable services had been provided; (2) the juvenile court abused its discretion when it found that return of the children to petitioner would create a substantial risk of detriment to the childrens physical or emotional well-being; and (3) special circumstances exist in this case warranting an extension of the 18-month reunification period. Court deny the petition for extraordinary writ.

A fire captain employed by the County of Los Angeles sued the county and other public entities alleging his mandatory retirement at age 60 violated age discrimination statutes and Federal and state constitutional provisions. When the trial court denied defendants motions for summary judgment, the defendants sought writ relief. This court issued a notice of its intention to issue a peremptory writ directing the trial court to vacate its order and enter a new order granting summary judgment. The trial court subsequently entered judgments for the defendants, and the fire captain appealed. Court affirm the judgments.

A deputy sheriff employed by the County of Los Angeles caused an accident when he fell asleep at the wheel of his vehicle. The deputy was later diagnosed with severe sleep apnea. A jury trial in the subsequent lawsuit brought by a motorist injured in the accident ended with a special verdict finding no negligence, the jury concluding the deputy was disabled by a sudden or unexpected physical condition which he could not reasonably have anticipated. The trial court granted the motorists motion for judgment notwithstanding the verdict, as well as his motion for a new trial, and the deputy and County appealed. Because there was insufficient evidence the deputy fell asleep suddenly or without warning, court affirm the order granting the motorist judgment notwithstanding the verdict.

Appellant appeals from the orders continuing him as a ward of the juvenile court (Welf. & Inst. Code, 602) after finding that he unlawfully possessed a firearm (Pen. Code, 12101, subd. (a)(1)) and placing him in a six month camp-community program. Before the adjudication, the juvenile court denied appellants motion to suppress evidence. (Welf. & Inst. Code, 700.1.)
Appellant contends that the juvenile court should have granted his motion to suppress evidence as his home was searched in the absence of a search warrant or exigent circumstances. He also claims that the search cannot be justified as a probation search. At the time of the search, the officers were aware that appellant was on probation for grand theft of an automobile, but did not know specific terms of his probation or whether he had a search condition of probation.
Court find exigency justifies the officers intrusion into appellants residence and that there was consent to the search. Consequently, court affirm the orders under review.

Alexander and Michael O., through their guardian ad litem, appeal from the dismissal of their action against Mia Lundin after a demurrer was sustained without leave to amend. Court affirm the order.

Defendant, also known as Jose Robles, appeals from a judgment entered upon his conviction by jury of second degree murder (Pen. Code, 187, subd. (a)). The jury also found to be true the personal firearm use enhancement within the meaning of section 12022.5. The trial court sentenced appellant to state prison for a term of 15 years to life plus two years. Appellant contends that the trial court erred and deprived him of his rights to a fair trial, a jury trial and due process by denying his request for a jury instruction on voluntary manslaughter based upon heat of passion. Court affirm.

Sandra Marquez appeals from a summary judgment granted to respondents Advantage Physical Therapy (APT) and David Musgrove on her complaint seeking damages for medical malpractice. She contends summary judgment was erroneously granted because there are triable issues of material fact as to whether defendants' negligence caused her injury. Marquez did not provide an expert's opinion to rebut the opinions of respondents' experts that respondents had met the standard of care. The absence of such an opinion is fatal to Marquez's case and court affirm.

Kelvin Dwayne Fields appeals a judgment following his no contest plea to possession of a controlled substance. (Health & Saf. Code, 11377, subd. (a).) He contends that the trial court erred in denying his motion to suppress evidence seized from his hotel room. Court affirm.

Defendant and appellant Jerry Tucker appeals an order of the trial court revoking his probation. Court affirm.

Manuel J. appeals from the denial of his petition under Welfare and Institutions Code section 388. Manuel did not receive actual notice of the dependency proceedings at his residence in Xalisco, Nayarit, Mexico. He argues that the lack of notice requires the juvenile court to begin anew the proceedings with respect to him. We find that Manuels arguments lack merit and that the best interests of the children would not be served by the change requested by him. Court affirm the denial of his section 388 petition

Daniel E. Harris appeals an order dividing the community property interest in his military retirement pension and awarding him an offset for overpayment of child support. Court conclude that the family law court properly declined to award additional offsets, and court affirm.

Plaintiff (Sherwood), as an assignee for the benefit of the creditors of an insolvent entity called WhatsHotNow.com (tenant), filed suit against tenants landlord, defendant and respondent EOP-Marina Business Center, L.L.C. (EOP), for return of tenants security deposit in the amount of $324,000. The trial court entered judgment in favor of Sherwood. The Court of Appeal reversed and remanded the case, directing the trial court to enter judgment in favor of EOP, allowing it to retain the security deposit. (Sherwood Partners, Inc. v. EOP-MarinaBusinessCenter (July 8, 2005, B175899) [nonpub. opn.] (Sherwood I).
On remand, the trial court granted EOPs motion for costs and attorney fees in the amount of $323,000 based upon an attorney fee provision in the written lease agreement between tenant and EOP. The trial court found that Sherwood and tenant were jointly and severally liable for the costs and attorney fees. Sherwood appeals the award of costs and fees against it personally. Sherwood does not appeal the award against tenant, WhatsHotNow.com.
Court reverse. As an assignee for the benefit of creditors, Sherwood did not assume the underlying liabilities of tenant. (Credit Managers Assn. v. Brubaker (1991) 233 Cal.App.3d 1587, 1594-1595 (Brubaker).) Thus, Sherwood cannot be personally liable for the award of attorney fees pursuant to the written lease between EOP and tenant. The widely used procedure of an assignment for the benefit of creditors would be eviscerated if an assignee like Sherwood were required to assume the underlying liabilities of the assignors insolvent business. (Ibid.)
Moreover, court conclude that as an assignee for the benefit of tenants creditors, Sherwood was a trustee of an express trust. (Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1171.) Code of Civil Procedure section 1026, subdivision (b), quoted below in the Discussion, does not permit an award of costs and attorney fees against a trustee of an express trust absent mismanagement or bad faith by the trustee in the action. Because Sherwood did not engage in mismanagement or bad faith in the prosecution of this action, pursuant to section 1026, subdivision (b), Sherwood is not personally liable for EOPs costs and attorney fees.
Court therefore remand the case to the trial court with direction to enter a new and different judgment stating that Sherwood, as assignee for the benefit of creditors, is not personally liable for the award of costs and attorney fees in favor of EOP.

Appellant contends that the trial court erred in sustaining the demurrer to his amended complaint on statute of limitations grounds. Court affirm.