CA Unpub Decisions

This is the second appeal involving this family, and our brief summary of the factual and procedural background is largely taken from our opinion in the prior appeal. (In re Andrea B. (Aug. 23, 2012, B234551) [nonpub. opn.].)
On August 30, 2007, the Department of Children and Family Services (DCFS) removed Andrea, who was born with congenital abnormalities from her parents’ custody. She was placed with her grandmother on October 17, 2007. (In re Andrea B., supra, B234551, at p. 2) Several months later, DCFS removed Andrea from her grandmother’s custody and placed her in a foster home. (In re Andrea B., supra, B234551, at p. 4.) The guardianship eventually was terminated, and on August 23, 2012, we affirmed the juvenile court’s order. (In re Andrea B., supra, B234551, at p. 2.)
Meanwhile, Andrea’s younger sister Ariel was also removed from her parents’ custody. (In re Andrea B., supra, B234551, at p. 7.) She was eventually placed into a preadoptive foster home with Andrea.
On June 5, 2012, DCFS reported for a hearing under Welfare and Institutions Code section 366.26 that a prospective home-studied adoptive parent had been identified for both girls. Both children were thriving in her care and the caregiver was committed to adopting them. DCFS recommended that the juvenile court terminate parental rights and free the children for adoption.

A jury convicted defendant Andrew Kwasi Donkor of meeting a minor for lewd purposes (Pen. Code, § 288.4, subd. (b)) and six counts of lewd or lascivious acts on a child (§ 288, subd. (c)(1)).[1] The trial court sentenced Donkor to 14 years in state prison. We affirm.

Appellant contends that the trial court improperly held a malicious prosecution action to be a Strategic Lawsuit Against Public Participation (SLAPP). (Code Civ. Proc., § 425.16.)[1] We determine that the action arose from protected activity and that appellant failed to establish a reasonable probability of prevailing on the merits. We further find that the trial court did not abuse its discretion in awarding respondents attorney fees and costs.

The juvenile court granted Karina G. (Mother) reunification services with her newborn son Nathan A. despite finding that she (1) caused the death of a six-month-old daughter and (2) lost parental rights to her son Alex. There is no evidence that Mother resolved her past problems: on the contrary, Mother denies any wrongdoing. The court cannot order reunification services for a parent who caused another child’s death unless there is clear and convincing evidence that reunification is in the surviving child’s best interest. (Welf. & Inst. Code, § 361.5, subd. (c).)[1] Nothing in the record overcomes the presumption against reunification.

Robert L. appeals from an order placing him on probation without wardship after the juvenile court sustained a petition alleging he had committed misdemeanor vandalism. He contends the evidence is insufficient to support the finding. We reverse.

A former partner in a four-partner law firm argues that upon dissociating he was entitled to a payout of 25 percent of the firm’s value pursuant to Corporations Code section 16701.[1] We find that the trial court did not err by determining plaintiff’s share in the partnership to be 4 percent. We also find that the trial court did not abuse its discretion by awarding plaintiff less in attorney fees than he requested.

Plaintiff and appellant Myung Ho Kyung (Kyung) appeals from the granting of a motion for summary judgment (Motion) brought by his landlord, defendant and respondent El Paseo Shopping Center LLC (Respondent). In ruling upon the Motion, the trial court did not have the benefit of a recent decision by the California Supreme Court, Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169 (Riverisland). Mainly in light of that decision, we will reverse the judgment.
In reaching that conclusion, we express no opinion on the merits of Kyung’s claims. While we make some comments below on the future of this lawsuit, we mainly focus on determining that the Motion should not have been granted in light of the current record.

Defendant William Coney was charged by amended information with the sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), and with various prior conviction allegations (Pen. Code, § 1170.12, subds. (a)-(d), § 667.5, subd. (b), § 1203, subd. (e)(4); Health & Saf. Code, § 11370.2, subd. (a)).[1] Defendant pled not guilty and denied the allegations. He was granted in pro. per. status on January 7, 2011, and the trial court appointed standby counsel. However, several days after trial started, and after numerous outbursts by defendant, his in pro. per. status was revoked and standby counsel conducted the remainder of the trial. Defendant was convicted by the jury, and following a bench trial on his priors, the trial court found he suffered two strike convictions, and had served a prison term. At sentencing, the court struck the prior strike allegations and sentenced defendant to seven years in county jail, under the Realignment Act of 2011 (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1 et seq.).

A father challenges the evidentiary bases for a juvenile court’s finding that he sexually molested his 14-year-old stepdaughter, and the court’s conclusion that father’s molestation of the teen posed a substantial risk of sexual abuse to father’s 15-year-old biological daughter and 13-year-old stepson who remained in the family home. We affirm.

Plaintiff All Cities Realty, Inc.’s founder registered the domain name “allcitiesrealty.com” in 1996 and became one of the first websites real estate consumers visited when searching the worldwide web for real estate. He also started using the mark “All Cities Realty” in connection with his services as a real estate broker. In 2001, the United States Patent and Trademark Office approved his application to register the mark, and California registered the mark in 2006. Plaintiff has continually used and protected the mark.

Appellant contends that the trial court erred by ordering partition of a property. She argues that the court should have found that the right to partition was waived. Because substantial evidence supported the conclusion that there was no waiver, we affirm the interlocutory judgment ordering partition.

Plaintiff Margaret Wendt appeals from the trial court’s order compelling her to arbitrate her dispute with defendant UBS Financial Services, Inc. (UBS) and the judgment confirming the resulting arbitration award. Plaintiff contends no agreement to arbitrate exists because as a result of her multiple sclerosis, she cannot read documents and UBS knowingly failed to inform her the brokerage contracts she executed with it contained an arbitration provision. She further contends that we may conduct a review of the arbitration award because it implicated her nonwaivable statutory rights, and that such review will disclose that the trial court erred in confirming the arbitration award. We affirm.

Defendant Anthony Vigeant appeals from the trial court’s denial of his motions requesting a new trial, the striking of the special circumstance, and the appointment of an expert. In July 2009, Vigeant was convicted of the first degree murder of David Pettigrew with special circumstances (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17))[1] (count 1), attempted robbery (§§ 664/211) (count 2), and first degree burglary (§ 459) (count 3). The jury found that a principal was armed with a firearm during the commission of all counts. (§§ 12022, subd. (a)(1).) After denial of the new trial motion and other motions, the trial court sentenced Vigeant to life in prison without the possibility of parole (LWOP) in count 1, a consecutive term of four years six months in count 2, and an additional year for the principal-armed enhancement. The court stayed the sentence in count 3 under section 654.
Vigeant appeals on the grounds that: (1) the trial court prejudicially erred in denying his motion for new trial, requiring reversal; (2) the trial court abused its discretion by refusing to hold an evidentiary hearing and to appoint a clinical neuropsychologist, and the errors prejudicially denied Vigeant his constitutional rights; (3) Vigeant’s LWOP sentence constitutes cruel and unusual punishment; and (4) the sentence in count 2 must be stayed under section 654.

Leroy Willis and Jerry Lamar Thompson appeal from the judgments entered after a jury convicted them of residential burglary and found true an allegation that the crime was a violent felony because someone else was in the house at the time. We reject their contentions: that the trial court erred by not instructing the jury on the elements required to prove the violent felony allegation and that there was insufficient evidence to sustain that finding; and that the prosecutor committed misconduct when arguing to the jury. After modifying the judgment to correct certain sentencing errors, we affirm.