CA Unpub Decisions

In 2013, when this dependency was filed, F.T. was two. In 2017, when parental rights were terminated, he was six. He is still six as of the date of this opinion. The mother has six children. The oldest four — all girls — have the same father. F.T. is her fifth child; he has a different father. In 2015, while this dependency was pending, the mother gave birth to her sixth child, another boy, by yet another father. In April 2013, the mother and her then-boyfriend were found in possession of marijuana, under circumstances indicating the intent to sell; they were arrested. When the Department investigated, it developed evidence that the mother was abusing methamphetamine and alcohol, the mother was unemployed, the mother had a history of choosing boyfriends with criminal records, the girls’ father had committed domestic violence against the mother, and the girls’ father had sexually abused one of the girls.
As a result, the Department detained the children and filed a depe

Defendants and appellants Alejandro Diaz-Barba (Diaz), Martha Barba De La Torre (Barba), Michael Kocherga, Nicholas Kocherga and Alexander Kocherga (the Kochergas) appeal from an order denying their Code of Civil Procedure section 425.16 special motions to strike the second amended complaint of plaintiffs and respondents Wolfgang Hahn and Nikita II, S.A. (at times respectively Hahn and Nikita). Defendants contend the trial court erred by denying their motions because the six causes of action alleged in the operative pleading assertedly arose from constitutionally-protected petitioning activity, namely defendants' alleged demand—as a condition to a proposed company share purchase and sale agreement—that bankruptcy adversary proceedings be dismissed. According to defendants, in reaching its ruling as to the first step of the section 425.16 analysis, the court did not consider the test applicable to a "mixed" cause of action arising from both protected and nonprotected

The County of Orange (the County) obtained a judgment against Kang Shen Chen (Chen) and Chen’s wife in 2007. In 2015, Chen filed a motion to vacate or set aside the judgment on the ground it was procured through extrinsic fraud and/or extrinsic mistake. Chen contends that because the County did not list a lawsuit against him and his wife in the adjustment plan the County filed in its bankruptcy proceedings in 1996, Chen and his wife had a defense of res judicata or estoppel against the County’s lawsuit. We conclude, as did the trial court, that Chen’s lack of knowledge of the contents of a publicly-available document filed in a federal court does not amount to extrinsic fraud or extrinsic mistake. We therefore affirm.

Plaintiff Sara Costa brought a negligence action against defendants Jeremy Kroes, M.D. and Los Alamitos Medical Center, Inc. (LAMC), arising from their care and treatment during an emergency room visit. The trial court granted defendants’ separate motions for summary judgment.
On appeal plaintiff argues the court improperly granted both motions. As to Kroes, her primary contention is the court erred in excluding the declaration of her medical expert on grounds he was unqualified to testify on the standard of care applicable to emergency room physicians under Health and Safety Code section 1799.110, subdivision (c). Plaintiff also makes several interrelated arguments concerning the applicability of section 1799.110 and the experts’ compliance or lack of compliance with its requirements. We conclude the court correctly excluded plaintiff’s expert declaration because he was not an emergency room physician and therefore, pursuant to section 1799.110, cannot offer testimony. H

The Berrys’ operative complaint alleges three causes of action against Foothill: (1) breach of fiduciary duty, (2) negligence, and (3) fraud committed by intentional misrepresentation.
As to the first cause of action, the Berrys allege they entrusted Foothill with management of and counsel regarding their financial investments, that Foothill failed to advise the Berrys to seek independent counsel regarding the transactions set forth in the complaint, and that the transactions which are the subject of their complaint were unsafe and unsuitable causing the Berrys to lose a substantial portion of their savings, thus violating the fiduciary duties Foothill owed to the Berrys.

Plaintiff and appellant Wells Fargo Bank, N.A. (Wells Fargo) challenges a judgment entered in favor of defendant and respondent Alfred Terteryan (Terteryan) following trial, finding that Code of Civil Procedure section 580b applied to this dispute and that Wells Fargo was not entitled to a deficiency judgment against Terteryan. Wells Fargo contends that the antideficiency statutes only protect borrowers when the deficiency arises under a deed of trust or mortgage on a dwelling. Because there was no dwelling here, a deficiency judgment should have been entered against Terteryan.

This CEQA case arises from the proposal of respondent Omni Resources LLC (Omni) to build a shopping center on Highway 68 in respondent Monterey County (County). After preparing an environmental impact report (EIR) concerning the proposed project and considering public comments, County’s Board of Supervisors approved the project in 2012.

Roger Tucker appeals a judgment following his jury conviction on one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) ). The trial court also found true allegations that Tucker had a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 1170.12, 668). On appeal, Tucker contends the trial court violated his constitutional right to due process of law by increasing his sentence based on those prior conviction allegations. He also contends the court issued an unauthorized sentence by staying, rather than striking, the punishment for the jury's true finding on the section 12022.7, subdivision (a) allegation for personally inflicting great bodily injury in committing the instant offense.

Appellant Lisa Ellen Tracy stands convicted of violating Health and Safety Code section 11358, cultivation of marijuana; and section 11364.1, subdivision (a), possession of a smoking device. Tracy appeals contending CALCRIM No. 3412, which instructs on compassionate use, erred in stating the law because it limited the quantity of marijuana she could possess to a reasonable amount. She also contends that fines and fees set forth in the abstract of judgment must be stricken because they were not part of the oral pronouncement. As to the claim of prejudicial instructional error, we disagree. We will, however, remand the matter for the trial court to impose any mandatory fines and fees.

Defendant Bryan Keith Silva appeals the trial court’s enhancement of his sentence pursuant to Penal Code section 667.5 for prior California and Texas convictions, respectively. Defendant contends the enhancements were unauthorized because (1) the prior Texas conviction did not qualify as a felony prison prior under section 667.5, subdivision (f), and (2) the prior California conviction had already been reduced to a misdemeanor for all purposes pursuant to Proposition 47 (as approved by voters Gen. Elec., Nov. 4, 2014, eff. Nov. 5, 2014), the Safe Neighborhoods and Schools Act (the Act), and did not qualify as a felony conviction under section 667.5, subdivision (b). Defendant requests that the true finding on the Texas prior conviction be stricken, and the true finding on the California prior be reversed.

Defendant Salvador Higareda Segura contends on appeal that the trial court’s pronouncement of judgment did not accurately reflect the offense to which he pled guilty. The People concede and we agree. Accordingly, we vacate the sentence and remand for resentencing and correction of the record.

Appointed counsel for defendant Cruz Rangel asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. We find no arguable issues on appeal.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

A jury found defendant Jose Antonio Perez guilty of transporting cocaine for sale. (Health & Saf. Code, § 11352, subd. (a).) The trial court granted him five years' probation on the condition he serve 365 days in custody, and imposed but stayed execution of a four-year prison sentence.
Perez contends the court erred in denying his motion to suppress the cocaine found in his car at a border checkpoint after he consented to a search of the vehicle. He also claims the court improperly denied his discovery requests, failed to instruct on intent to transport for sale, and erred in declining to instruct the jury on simple possession as a lesser included offense. We reject these contentions and affirm.

Steven Adrian Pacheco was convicted of 14 counts of sexually molesting his stepdaughter, who was 15 years old when the abuse was revealed. At trial, Pacheco admitted to certain acts of touching, but said they happened when he and his stepdaughter were roughhousing and he had no sexual intent. In this appeal, he argues that the trial court abused its discretion when it admitted some evidence of prior acts to prove that his touching the victim did have a sexual intent. Specifically, the court admitted: (1) evidence that Pacheco possessed numerous items of pornography with the word “teen” in the title; and (2) a document handwritten by Pacheco describing means by which a lesbian sexual predator might take advantage of a victim. Pacheco maintains that this was evidence of his character, was being used to prove his conduct on specific occasions, and thus was inadmissible under Evidence Code section 1101, subdivision (a). The trial court admitted the evidence as probative of intent