CA Unpub Decisions

This appeal arises out of a family dispute between Ricardo Medina (Ricardo) and his mother Rafaela Medina (Rafaela) concerning the ownership of a residential home in Chula Vista.
Ricardo filed a complaint against Rafaela alleging he was the sole owner of the property from 1986 until 1999. The complaint alleged that in 1999, Ricardo deeded the property to Rafaela and his father, Daniel Medina (Daniel), on the condition that they would deed the property back to him upon his request. According to Ricardo, Daniel died in 2002, Ricardo asked Rafaela to return the property to him in 2019, and Rafaela refused his request. Based on these allegations, Ricardo sued Rafaela for promissory estoppel, imposition of constructive and resulting trusts, breach of contract, specific performance, damages, an accounting, deceit and trick, real estate and mortgage fraud, and filing false or forged documents.

C.J. and T.R. were married in July 2016. They separated two days later. The next year, C.J. petitioned for annulment of their marriage based on T.R.’s alleged fraud or, in the alternative, dissolution based on irreconcilable differences. Claiming his efforts to locate T.R. were unsuccessful, C.J. obtained a family court order authorizing service by publication. After T.R. did not appear at a court proceeding, the family court entered her default and granted a judgment of nullity based on fraud.
After T.R. became aware of the default judgment, she moved to vacate the judgment, arguing she did not have actual notice of the action. (Code Civ. Proc., § 473.5.) In the alternative, T.R. sought relief based on mistake or surprise, maintaining she was in contact with C.J. by text message before and during the time he filed his petition but C.J. concealed it from her.

Michael A. Bogue, M.D. is an anesthesiologist formerly employed by Anesthesia Service Medical Group, Inc. (ASMG). ASMG is a professional medical corporation, which contracted with Sharp Memorial Hospital (Sharp) to provide anesthesia services. After 14 years of employment with ASMG, in 2014, the corporation’s board of directors voted not to renew Dr. Bogue’s annual employment agreement. Shortly after, Dr. Bogue filed a complaint against ASMG in San Diego Superior Court alleging discrimination, harassment, wrongful termination, and retaliation after he reported unsafe conditions in Sharp’s facilities. ASMG compelled the litigation to arbitration under its agreement with Dr. Bogue. The arbitrator found in favor of ASMG and the award was confirmed in the trial court, and by this court on appeal.

Appointed counsel for defendant, Melissa Burton, has asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Our review of the record has disclosed that although defendant’s plea agreement provided for dismissal of the charges other than those to which she pleaded no contest, the trial court failed to affirmatively dismiss those charges following defendant’s no contest plea and sentencing. We will amend the judgment to address this failure. Finding no other arguable error that would result in a disposition more favorable to defendant, we affirm the judgment as modified.

Defendant Michael Hix pleaded no contest to second degree robbery and admitted he personally used a firearm in the commission of the crime. Defendant appeals the trial court’s denial of the Department of Corrections and Rehabilitation’s (CDCR) recommendation under former Penal Code section 1170, subdivision (d)(1) (section 1170(d)(1)), that the trial court consider recalling defendant’s sentence and resentencing him. He argues the trial court denied him due process when it denied the request without notice and an opportunity to be heard and abused its discretion in denying the request. After defendant filed this appeal, the Governor signed Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assem. Bill No. 1540) (Stats. 2021, ch. 719) into law. In light of this new law, the Attorney General concedes defendant is entitled to a reversal and a resentencing hearing consistent with the provisions of Assem. Bill No. 1540.

Defendant Brandon James High entered into an open plea agreement, pleading guilty to two substantive counts and admitting a Penal Code section 667.5, subdivision (b) prior prison term enhancement allegation. Prior to sentencing, defendant moved to dismiss the prior prison term enhancement in the interests of justice. The trial court denied the motion and imposed sentence, including a one-year term for the enhancement.
On appeal, defendant contends (1) the prior prison term enhancement constitutes an unauthorized sentence because the underlying conviction was not a sexually violent offense, (2) he was denied the constitutionally effective assistance of counsel by his attorney’s failure to object to the complaint and/or argue at sentencing that his prior conviction was not a sexually violent offense, and (3) the trial court abused its discretion in denying his motion to strike or dismiss the enhancement in furtherance of justice pursuant to section 1385.

A jury convicted defendant Leo A. Carrillo of two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664 – counts one & four), two counts of discharging a firearm from a motor vehicle (§ 26100, subd. (c) – counts two & five), three counts of assault with a semiautomatic firearm (§ 245, subd. (b) – counts three, six, & eight), two counts of being a felon in possession of a firearm (§ 29800, subd. (a)(1) – counts seven & nine), one count of being a felon in possession of ammunition (§ 3035, subd. (a)(1) – count ten), and a count of hit and run causing injury (Veh. Code, § 20001, subd. (b)(1) – count eleven). The jury found true allegations that defendant personally used and intentionally discharged a firearm in connection with attempted murder and discharge of a firearm from a motor vehicle (§ 12022.53, subds. (b)-(d)); used a semiautomatic firearm in committing assault with a firearm as to counts three, six, and eight (§ 12022.5, subds. (a), (d));

This dispute between Nshan Simonyan and his insurer, Nationwide Insurance Company of America (Nationwide), involves Nationwide’s handling of his defense in an action arising out of a three-car accident in which Simonyan was a driver. Simonyan asked Nationwide to appoint, as Cumis counsel, a law firm that he had already hired to advance his affirmative claim against the driver who hit him. Nationwide refused. Simonyan appeals from a judgment of dismissal after the trial court sustained Nationwide’s demurrer to his second amended complaint without leave to amend. Simonyan argues his allegations were sufficient to state claims for breach of contract and breach of the implied covenant of good faith and fair dealing, and that the trial court abused its discretion in denying his motion to reconsider based on new allegations. We will affirm the judgment.

In 2011, defendant Elvira Desideria Torres entered into a negotiated plea in which she pleaded guilty to voluntary manslaughter (Pen. Code, § 192, subd. (a)), and second degree robbery (§ 211). Defendant also admitted that she personally used a firearm during the commission of the voluntary manslaughter (§ 12022.5, subd. (a)). Under the terms of the plea, the trial court sentenced defendant to 22 years in state prison along with various fines and fees.
In 2019, defendant filed a petition for resentencing under former section 1170.95. The trial court summarily denied the petition without appointing legal counsel for defendant or allowing the parties to file additional briefing. Defendant appeals.
In her opening brief, defendant contends (1) the trial court erred in summarily denying her petition without appointing legal counsel or giving the parties the opportunity to file additional briefing,

Under Code of Civil Procedure section 529, a court generally must require a party who has obtained a preliminary injunction to post an undertaking in an amount determined by the court. Courts set this amount based on their estimate of the harmful effect the injunction is likely to have on the enjoined party, and in the event they later conclude the injunction was wrongly issued, they may require some or all of this amount to be distributed to the enjoined party to compensate it for the harm it suffered. These requirements provide a measure of protection to parties who are mistakenly enjoined.
In this case, Carla L. Johansen sought to enjoin her loan servicer, Bayview Loan Servicing LLC (Bayview), from foreclosing on her home. The trial court afterward agreed to grant a preliminary injunction.

Oscar Hernandez Valles appeals from the trial court’s postjudgment order denying his petition to strike the restitution fine imposed as part of the judgment. We dismiss.
In 2017, a jury convicted Valles of second degree murder (Pen. Code, §§ 187, subd. (a), 189), and found true an allegation that he used a deadly weapon to commit his crime (§ 12022, subd. (b)(1)). (People v. Valles (Dec. 20, 2018, B284705) [nonpub. opn.] [2018 WL 6695881 at p. *1].) The trial court sentenced him to 15 years to life in state prison plus one year. (Ibid.) The court ordered also ordered Valles to pay a $10,000 restitution fine. (§ 1202.4, subd. (b).) We affirmed the judgment on appeal. (People v. Valles, supra, B284705 [2018 WL 6695881 at p. *4.)
In 2021, Valles petitioned the trial court to strike the restitution fine from the judgment. He argued the fine is no longer valid pursuant to Assembly Bill No. 1869 (2019-2020 Reg. Sess.). The trial court summarily denied Valles’s petition.

Mother appeals an order terminating her parental rights to her four-year-old son M.G. She contends the juvenile court abused its discretion by denying her request for a contested hearing to consider the beneficial parent relationship exception to adoption and her request for an updated adoption assessment. The court concluded mother’s failure to maintain consistent and regular visitation with M.G. throughout the dependency proceeding precluded her from establishing the exception, even if the court credited her offer of proof regarding her most recent visits with the child. The juvenile court reasonably assessed the evidence and mother’s offer of proof. We affirm.

Grady F., Jr., the father of nine-year-old Alliyah F. and seven-year-old Caden F., appeals the August 12, 2021 order terminating his parental rights, contending the Los Angeles County Department of Children and Family Services (Department) failed to adequately investigate his claim of Indian ancestry and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) did not apply to these proceedings.
The obligation to conduct such an investigation is clear: When there is reason to believe a child involved in a dependency proceeding is or may be an Indian child within the meaning of ICWA, the child protective agency filing the dependency petition—here, the Department—has a duty to make further inquiry regarding the possible Indian status of the child as soon as practicable.

Father E.H. (Father) appeals the termination of his parental rights to now three-year-old E.H. Father contends that the social worker’s Welfare and Institutions Code section 366.26 report was inadequate as to his history of visitation, bond, and current relationship with E.H., such that the juvenile court could not make an informed decision to terminate his parental rights, citing new authority in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). Father also claims that the juvenile court erroneously relied on his ability to reunify when terminating his parental rights. Father requests that we reverse and remand for a new hearing under section 366.26, so that the juvenile court can make its decision with the guidance of Caden C. and a new section 366.26 report.