CA Unpub Decisions

A petition filed December 30, 2015, pursuant to Welfare and Institutions Code section 602, alleged that the minor I.G. possessed methamphetamine, a misdemeanor (Health & Saf. Code, § 11377, subd. (a); count one), and possessed hydrocodone (Health & Saf. Code, § 11350, subd. (a); count two). After the minor’s motion to suppress the evidence (Welf. & Inst. Code, § 700.1) was denied, he entered a negotiated admission to count one and count two was dismissed in the interests of justice. The minor was placed on probation for six months subject to certain conditions including 21 days of community service with a maximum confinement term of one year.

Appellant C.S., a minor, appeals from the juvenile court’s order setting the amount of restitution owed under Welfare and Institutions Code section 730.6. Appellant contends the juvenile court abused its discretion in determining the proper amount of restitution. For the reasons set forth below, we reverse the juvenile court’s restitution order and remand for further proceedings.

P.M., the maternal grandmother of 13-year-old A.M., appeals from a juvenile court order terminating appellant’s guardianship (Cal. Rules of Ct., rule 5.620(e); Welf. & Inst. Code, § 728, subd. (a)) after the court sustained a petition alleging that A.M. was the victim of commercial sex trafficking (§ 300, subd. (b)(2)). The trial court terminated the probate guardianship based on clear and convincing evidence that it was in the best interests of the child. (§ 728, subd. (a).) We affirm.

In this action alleging employment discrimination and wrongful termination of employment, Samuel Firestone appeals on the clerk’s transcript from the judgment entered in favor of respondents CFS Tax Software, Inc. (CFS), and Theodore Sullivan. Appellant contends that the trial court abused its discretion in denying his request to continue the trial, in not allowing him additional time to retain replacement counsel before ruling on respondents’ discovery motions, and in awarding respondents their reasonable attorney fees. We affirm.

Appellant Karen Fagundes sued her brother, respondent Timothy Silva, based primarily on Silva’s testimony in a separate lawsuit brought by a different sibling. The trial court granted Silva’s motion to strike Fagundes’s complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) We affirm. Silva’s testimony was activity protected by the anti-SLAPP statute, and Fagundes has not shown a probability of succeeding on the merits of her claims.

Plaintiff David Crawn appeals the judgment of dismissal of his personal injury action, which the trial court dismissed after settlement under California Rules of Court, rule 3.1385(b). The trial court gave as an alternate ground for dismissal counsel’s failure to personally appear at an order to show cause hearing, and her failure to file a declaration within the deadline the trial court imposed. Crawn contends the dismissal was an abuse of discretion and we agree. We reverse the dismissal and remand for the trial court to return the case to the civil active list.

Defendant Frank Brown appeals from the denial of his motion to vacate an order assessing over $250,000 in penalties arising from a breach of his duties as a trustee. Brown's motion, filed approximately 14 months after the penalty assessment order, claimed he simply forgot to disburse payments as the trustee and did not read his mail to receive notice of the subsequent court proceedings. The probate court denied the motion, finding that the time periods for statutory relief had long since passed and equitable relief was not warranted. Brown now contends the court abused its discretion in denying his motion because he presented compelling evidence that he had a satisfactory excuse for not appearing, acted diligently in seeking to set aside the order and, if he had appeared, had a meritorious defense. We see no abuse of discretion and accordingly affirm.

Appellant Colonial Medical Group, Inc. (Colonial) challenged an agreement between a hospital run by respondent Dignity Health and a different medical group, claiming that the agreement was illegal and unfair. The trial court sustained the hospital’s demurrer to Colonial’s complaint, which alleged various business torts, but allowed the action to proceed as a petition for writ of mandate. After extensive discovery and a contested hearing, the trial court ruled against Colonial on the petition. On appeal, Colonial does not challenge the trial court’s final ruling on the petition’s merits but instead contends that the trial court improperly sustained the demurrer. We disagree and affirm.

Michael F. Guigliano, Barbara J. Guigliano, Frederick W. Guigliano, and Roberta A. Guigliano appeal from a judgment declaring that respondents Cynthia Brokaw and Brian Bailey have a prescriptive right to use a dirt road on appellants’ property at 1234 Catarina Street, Santa Ynez. The trial court factually found that the use of the road ripened into a prescriptive easement well before appellants purchased the property. The court further found that appellants have a non-exclusive Utility Easement across respondents’ property for utility purposes, which includes an “entry envelope” to turn into appellants’ driveway. We affirm.

Defendant Steven Paul Schmidt has asked us to correct a clerical order in his abstract of judgment, a request with which the People agree. We shall order the correction and also direct the trial court to correct its internal records.

A jury found Miguel Angel Robles guilty of two counts of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a),) with the further finding that Robles had substantial sexual conduct with the victim. (§ 1203.066, subd. (a)(8).) The trial court sentenced Robles to an eight-year prison term.
Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Robles has not responded to our invitation to file a supplemental brief. After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.

Appellant Jordan Christopher Hughes was tried before a jury and convicted of one count of attempted murder of a peace officer and three counts of assault with a firearm upon a peace officer, along with allegations that he personally and intentionally discharged a firearm. (Pen. Code, §§ 187, 664, 245, subd. (d)(1), 12022.53, subd. (c).) He contends the trial court abused its discretion when it denied his request for an in camera review of police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We conclude the judgment must be conditionally reversed and the matter remanded for an in camera review. (See People v. Gaines (2009) 46 Cal.4th 172, 180 (Gaines).) In the event the judgment is reinstated following that review, a new sentencing hearing is required due to the trial court’s unauthorized stay of two firearm enhancements. (See People v. Oates (2004) 32 Cal.4th 1048, 1063 (Oates).)

A jury convicted defendant Arthur Lee Holmes of second degree murder and assault causing the death of his girlfriend’s nine-month-old son. The trial court sentenced him to a total of 40 years to life in prison, comprised of 25 years to life for the assault and a consecutive term of 15 years to life for the murder.
On appeal, Holmes argues his assault conviction must be reversed because there was insufficient evidence the infant was in his “care or custody” at the time of the injury. He also contends the court improperly instructed the jury on the definition of those terms by reading the following language from this court’s decision in People v. Cochran (1998) 62 Cal.App.4th 826, 832 (Cochran): “The terms ‘care or custody’ do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver.” Holmes argues that if we uphold his assault conviction, we must stay the sentence on the murder because it is based on the same

Timothy Bernard Hayden appeals from a judgment entered following his negotiated plea of no contest to two counts of armed robbery. Hayden’s appointed appellate counsel filed an opening brief raising no issues. After independently examining the record, we affirm.