CA Pub. Decisions

Respondent United States Fire Insurance Company (U.S. Fire) sued to enjoin appellant Sheppard, Mullin, Richter & Hampton, LLP (Sheppard Mullin) from representing an informal committee of asbestos creditors, together with that committee's law firms, in a pending action to which U.S. Fire is a party, entitled Plant Insulation Company v. Fireman's Fund Insurance Company (Super. Ct. S.F. City and County, 2006, No. CGC-06-448618) (Plant Litigation). U.S. Fire claims that Sheppard Mullin has a disqualifying conflict of interest arising out of Sheppard Mullin's former representation of U.S. Fire in the matter of Kelly-Moore Paint Company, Inc. v. Liberty Mutual Insurance Co. et al. (Super. Ct. S.F. City and County, 2001, No. CGC-01-325147) (Kelly-Moore Litigation).
Sheppard Mullin filed a special motion to strike the complaint (a so-called anti-SLAPP motion) pursuant to Code of Civil Procedure section 425.16 (section 425.16), contending that its legal representation in the Plant Litigation is protected activity, and U.S. Fire cannot show a probability that it would succeed on the merits of its claim. The trial court concluded that this action interferes with Sheppard Mullin's right to petition, and thus, is protected activity under the anti-SLAPP law. However, the trial court went on to conclude that U.S. Fire satisfied its burden to show a probability of success as to the merits of its claim, and therefore denied the anti-SLAPP motion. We disagree with the trial court's conclusion that U.S. Fire's complaint arises out of protected activity, and so affirm the ruling denying the motion, but on other grounds.[1]

Defendant Hyung Joon Kim was born in South Korea and entered this country legally with his parents when he was a young child. He has lived in this country as a legal resident for more than two decades but never became a citizen. As a result of his multiple criminal convictions, the federal government now seeks to remove him from the country and return him to South Korea. He petitioned for a writ of error coram nobis in the trial court, seeking to vacate the state felony convictions that triggered his federal removal proceedings. His case is one of two we decide today in which litigants seek to challenge the validity of old, otherwise final criminal convictions to eliminate them as a possible basis for removal from this country by federal authorities. As we explain in a companion case (People v. Villa (Mar. 16, 2009, S151561) __ Cal.4th ___), a person in federal immigration detention is ineligible for a writ of habeas corpus from a state court if his state sentence and probation or parole have been completed. In the instant case, we conclude defendant Kim is ineligible for a writ of error coram nobis on the facts of this case. Accordingly, because the Court of Appeal below correctly reversed the trial court's decision to issue the writ, we affirm.

Defendant Hyung Joon Kim was born in South Korea and entered this country legally with his parents when he was a young child. He has lived in this country as a legal resident for more than two decades but never became a citizen. As a result of his multiple criminal convictions, the federal government now seeks to remove him from the country and return him to South Korea. He petitioned for a writ of error coram nobis in the trial court, seeking to vacate the state felony convictions that triggered his federal removal proceedings. His case is one of two we decide today in which litigants seek to challenge the validity of old, otherwise final criminal convictions to eliminate them as a possible basis for removal from this country by federal authorities. As we explain in a companion case (People v. Villa (Mar. 16, 2009, S151561) __ Cal.4th ___), a person in federal immigration detention is ineligible for a writ of habeas corpus from a state court if his state sentence and probation or parole have been completed. In the instant case, we conclude defendant Kim is ineligible for a writ of error coram nobis on the facts of this case. Accordingly, because the Court of Appeal below correctly reversed the trial court's decision to issue the writ, we affirm.

Avelino Ceja Villa, a lawful resident alien, pleaded guilty to a felony in this state in 1989 and served a three-year period of probation. Now, many years later, he is facing removal from this country by federal immigration authorities, allegedly because of his 1989 conviction. In a companion case, we address whether, and to what extent, persons in similar situations are entitled to have their guilty pleas vacated by a writ of error coram nobis. (People v. Kim (Mar. 16, 2009, S153183) __ Cal.4th ___.) In this case, we hold that because Villa is no longer in California custody as a result of his 1989 conviction, but is instead in federal custody in another state, he is ineligible for relief by way of a writ of habeas corpus. In suggesting otherwise, the Court of Appeal erred.

A jury convicted defendant of possessing methamphetamine for sale, a felony, and being under the influence of methamphetamine, a misdemeanor. (Health & Saf. Code, §§ 11378, 11550, sub. (a).) Defendant admitted that he had three prior convictions for being under the influence of, or using, a controlled substance. The court placed defendant on probation for three years.
On appeal, defendant contends: (1) the trial court had no jurisdiction to try him because the district attorney failed to file an information; (2) defense counsel rendered ineffective assistance of counsel for failing to object to evidence that defendant was unemployed and on welfare, and eliciting further evidence of his financial straits; and (3)
the prosecutor committed misconduct by arguing that defendant placed the jacket in which the methamphetamine was found into his jail property. We affirm.

Defendant T.B. appeals from the jurisdictional and dispositional findings of the trial court, adjudging him to be a ward of the court in connection with two counts alleged in a Welfare and Institutions Code section 602 petition: possession of a weapon on school grounds (Pen. Code § 626.10, subd. (a))[1] and possession of tobacco by a minor (§ 308, subd. (b)). Defendant claims the â€

A modification decision.

B.S., Sr. (the father) appeals from the juvenile court's issuance of a restraining order under Welfare and Institutions Code section 213.5. The challenged order names his son, B.S., Jr. (B.S.) -- the subject of this juvenile dependency proceeding -- as a protected person, along with B.S.'s mother and maternal grandmother. The father contends that the juvenile court lacked jurisdiction to issue the order, because the criminal court had already issued a similar restraining order under Penal Code section 136.2. He further contends that there was insufficient evidence to support the issuance of the restraining order with respect to B.S. We find no error. Hence, we will affirm.

Joseph Rozzo murdered Richard Heggie in 1980. In 1982, a jury found Rozzo guilty of second degree murder, and he is currently serving a sentence of 16 years to life. Rozzo filed this petition for writ of habeas corpus challenging the Governor's reversal of a decision of the Board of Parole Hearings (Board) granting Rozzo parole. Rozzo's primary claim is that the Governor's decision violates his right to due process because there is not sufficient evidentiary support for the decision.
In our initial opinion in this matter, we concluded that there was sufficient evidence to support the Governor's decision. (In re Rozzo (2008) 159 Cal.App.4th 1089, 1106.) We rejected the remainder of Rozzo's claims and denied the petition. (Id. at pp. 1110-1113.) The Supreme Court granted Rozzo's petition for review (In re Rozzo, review granted May 14, 2008, S161469), and subsequently issued two companion decisions, In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), in which the court clarified the law governing judicial review of parole decisions. The Supreme Court then transferred Rozzo's case back to this court with directions to vacate our earlier decision and reconsider the case in light of Lawrence and Shaputis.
We now vacate our prior decision and reconsider the matter, as directed by the Supreme Court. Upon reconsideration, we again conclude that there is sufficient evidence to support the Governor's decision, and reject the remainder of Rozzo's claims. Accordingly, we deny the petition.

Joseph Rozzo murdered Richard Heggie in 1980. In 1982, a jury found Rozzo guilty of second degree murder, and he is currently serving a sentence of 16 years to life. Rozzo filed this petition for writ of habeas corpus challenging the Governor's reversal of a decision of the Board of Parole Hearings (Board) granting Rozzo parole. Rozzo's primary claim is that the Governor's decision violates his right to due process because there is not sufficient evidentiary support for the decision.
In our initial opinion in this matter, we concluded that there was sufficient evidence to support the Governor's decision. (In re Rozzo (2008) 159 Cal.App.4th 1089, 1106.) We rejected the remainder of Rozzo's claims and denied the petition. (Id. at pp. 1110-1113.) The Supreme Court granted Rozzo's petition for review (In re Rozzo, review granted May 14, 2008, S161469), and subsequently issued two companion decisions, In re Lawrence (2008) 44 Cal.4th 1181 (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), in which the court clarified the law governing judicial review of parole decisions. The Supreme Court then transferred Rozzo's case back to this court with directions to vacate our earlier decision and reconsider the case in light of Lawrence and Shaputis.
We now vacate our prior decision and reconsider the matter, as directed by the Supreme Court. Upon reconsideration, we again conclude that there is sufficient evidence to support the Governor's decision, and reject the remainder of Rozzo's claims. Accordingly, we deny the petition.

Defendant John Robert Grimes entered unconditional pleas of guilty to battery with serious bodily injury (Pen. Code, § 243,
subd. (d), further section references are to this code; count I) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count II). He was sentenced on count I to state prison for the low term of two years with 141 days of presentence credit. Sentence on count II was stayed pursuant to section 654.
On appeal, defendant contends the trial court abused its discretion by imposing a prison sentence rather than granting him probation. We shall affirm the judgment.
In the published portion of this opinion we discuss the importance of careful handling of notices of appeal.

C.M. appeals an order of the juvenile court terminating parental rights and finding her child adoptable. (Welf. & Inst. Code, § 366.26.)[1] She contends the juvenile court erred in giving the notices required by the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm.

Parties agree to act reasonably in their contractual relationship. This case demonstrates that when a party acts unreasonably, no one prospers, except the attorneys.
Michael Bollag appeals a judgment extending the escrow on a land sale contract so that buyer Peak-Las Positas Partners (PLP) can obtain a lot line adjustment for a housing project. The trial court found that Bollag acted unreasonably in refusing to extend the escrow after PLP paid most of the purchase price and incurred about $5 million in costs for the lot line adjustment. PLP also received attorney's fees and costs. We affirm.

BAM Building Company, a general partnership, Michael T. Novick, Robert J. Novick (deceased), BAM Building, a California limited liability partnership, Michael Todd Novick Living Trust, and Novick Family Trust Number One dated June 4, 1982 (collectively BAM) appeal from a judgment entered after a bench trial awarding Nicholas A. Franke $178,288.61 in his action against BAM for liability on an undertaking. The award included $82,535.27 for Franke's losses incurred in municipal and bankruptcy court actions resulting from BAM's efforts to enforce a judgment against a third party, prejudgment interest (Code Civ. Proc., § 720.260, subd. (c)(2)),[1] $39,270.00 in attorney's fees and $2,148.71 in costs as the prevailing party (ibid.).
BAM contends that Franke incurred no recoverable losses as a result of its enforcement proceedings because BAM's lien was invalid and its efforts to levy on a bankruptcy distribution were ineffective. BAM also challenges particular items of loss. BAM further contends that section 720.260 does not authorize an award of attorney's fees in this action. We reverse the award of attorney's fees in the amount of $39,270 and otherwise affirm.