CA Unpub Decisions

J.F. (mother) appeals from the juvenile court’s order terminating her parental rights to her children—J.D., A.D., and Jo.D.—contending that the court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with their duties under the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related state statutes (Welf. & Inst. Code, § 224 et seq.) and court rules (Cal. Rules of Court, rule 5.480 et seq.). We conditionally reverse the court’s order and remand for the limited purpose of ensuring compliance with ICWA’s requirements.

John Paul Cunningham appeals from the trial court’s order modifying a prior child support order. He contends: (1) the court lacked authority to reduce the amount of income imputed to his ex-wife, Jennifer Cunningham, for purposes of recalculating his child support payments, (2) the court violated his due process rights because it did not provide notice that it would reduce the amount of her imputed income, and (3) substantial evidence does not support the modified order. We affirm.

Father J.S. (father) appeals from an order taking jurisdiction over his children, daughter Jessica S. and son J.S., pursuant to Welfare and Institutions Code section 300 (section 300). Father contends that substantial evidence did not support the counts that alleged he struck Jessica with a belt. He does not, however, challenge the sufficiency of the evidence supporting the counts that alleged he sexually abused Jessica. We affirm.

Richard John Geise, Jr., appeals from the trial court’s order denying his petition for Penal Code section 1170.95 resentencing. He contends the court erred when it: (1) determined that prosecutors proved he is ineligible for resentencing, and (2) considered the trial judge’s comments about the evidence when making that determination. We affirm.

A jury convicted defendant and appellant Pedro Alberto Diego (defendant) on murder and attempted murder charges, among others. Defendant petitioned the trial court to vacate his first degree murder conviction pursuant to Penal Code section 1170.95. The trial court appointed counsel for defendant and denied his petition. This court initially affirmed, but after passage of Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), our Supreme Court granted review and returned the cause to us for further consideration. There is now no real dispute between the parties: defendant does not challenge the correctness of our prior holding that defendant’s murder convictions are not subject to vacatur under section 1170.95 and the Attorney General concedes defendant’s attempted murder convictions may qualify for section 1170.95 relief.

This dispute is between two commercial tenants in a trilevel building in the heart of San Francisco’s theatre district. Defendants operate a ground floor fast-food restaurant directly above plaintiff’s basement level nightclub. After sewage and other waste flooded into the nightclub, plaintiff sued defendants and sought temporary injunctive relief. The trial court initially denied the motion but later granted plaintiff’s request for reconsideration and issued a preliminary injunction prohibiting defendants from using their on-premises plumbing and leaking appliances until repairs are made. On appeal, defendants first contend the trial court erroneously granted plaintiff’s motion for reconsideration. Second, defendants claim the trial court abused its discretion in issuing the preliminary injunction because plaintiff was not likely to prevail and the balance of harms favored defendants rather than plaintiff. Finding no error, we affirm.

A.B. (Mother) appeals from the juvenile court’s dispositional order vesting physical custody of her now seven-year-old daughter, M.H., outside her care and continuing M.H.’s placement with her maternal grandmother. (Welf. & Inst. Code, § 361, subd. (c)(1), (c)(4).) Mother does not challenge the juvenile court’s jurisdictional order sustaining allegations of recent sexual abuse by Mother’s boyfriend Javier Belmontes and “another unknown adult,” along with general neglect (failure to protect). (§ 300, subds. (b), (g).) The juvenile court entered those jurisdictional findings despite Mother’s denial of “any knowledge of sexual abuse” and her denial of “any problem with substance abuse” that could pose a risk of harm to M.H. Rather, Mother contests the sufficiency of the evidence to support removing M.H. from her custody and, in a related argument, contends the court should have ordered family maintenance services rather than reunification services.

K.K., Sr. (Father) appeals from a judgment terminating his parental rights to his 11-year-old son, K.K., Jr. (K.K.), under Family Code section 7822, which authorizes the termination of rights of a parent who “has left the child in the care and custody of the other parent for a period of one year . . . without communication from the parent . . . with the intent . . . to abandon the child.” (§ 7822, subd. (a)(3).) Father concedes he did not communicate with K.K. for over a year, so the sole issue on appeal is whether substantial evidence supports the trial court’s finding of intent to abandon. According to Father, he never intended to abandon K.K.; he stopped trying to communicate with K.K. only because K.K.’s mother had consistently thwarted his communication efforts, and he believed further attempts at communication would be futile. After reviewing the entire record, we find substantial evidence supports the finding of intent to abandon and affirm the judgment.

Carlos Rodriguez Urrutia appeals from the trial court’s postjudgment order denying his petition for resentencing on his conviction for attempted murder (Pen. Code, § 1170.95, all further statutory references are to the Penal Code). Urrutia argues the recently enacted Senate Bill No. 775 (SB 775) requires we reverse the court’s postjudgment order denying his petition and remand the matter. We disagree and affirm the postjudgment order.

Jeremy W. (father) is the father of the child Robert W., who is the subject of a dependency case. Father challenges the juvenile court’s orders terminating his parental rights at a Welfare and Institutions Code section 366.26 hearing. Father’s sole claim is that the Kern County Department of Human Services (department) failed to comply with the inquiry provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because the department did not ask Robert’s known relatives about possible Indian ancestry.
The department concedes that it failed to conduct adequate ICWA inquiry as to possible Indian ancestry of Robert, and it does not oppose remand for the limited purpose of conducting further ICWA inquiry. We agree with the parties and conditionally reverse the juvenile court’s orders terminating parental rights and remand for proceedings to ensure ICWA compliance.

At the center of this appeal is appellant Victoria Bosier’s effort to “amend” the judgment dissolving her marriage to Ellery Jean Stevenson in 2004. This opinion addresses the appealability of the decision made in the trial court, the validity of the decision made, and the adequacy of the record provided. We affirm the trial court’s denial of the request to amend.

Appellant Anita Abernathy appeals following the trial court’s grant of summary judgment to respondent Duncan Enterprises (Duncan). Raised in various ways over 11 causes of action, Abernathy alleged in her complaint that she was wrongfully reassigned and terminated from her employment due to discrimination over her age and gender and in retaliation for reporting sexist behavior by a coworker. The trial court rejected these assertions, concluding Duncan had submitted sufficient evidence of a legitimate business reason for its actions, uncontradicted by evidence of pretext, to warrant summary judgment. In this appeal, Abernathy contends the trial court erred in this determination. Relatedly, Abernathy contends the trial court wrongly excluded certain declaratory evidence from consideration on summary judgment and abused its discretion when it heard Duncan’s motion less than 30 days before the scheduled trial. For the reasons set forth below, we affirm.

This matter is before us for reconsideration following the California Supreme Court’s recent decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado). As discussed below, we shall remand for resentencing in accordance with Tirado.

Defendant L.S., a minor, appeals from an order of wardship (Welf. & Inst. Code, §§ 602, 725), which was based on a finding that he possessed a firearm at school in violation of subdivisions (b) and (f)(1) of Penal Code section 626.9. L.S., who was 13 years old at the time of the violation, contends that the record does not contain clear and convincing evidence that he understood the wrongfulness of his actions, so the presumption that children under age 14 lack criminal capacity was not rebutted. (Pen. Code, § 26.) We affirm.