CA Unpub Decisions

Plaintiffs and appellants Charles P. Le Beau and Victoria J. Le Beau (Plaintiffs) appeal a summary judgment granted in favor of defendant and respondent Bank of America, N.A. (the Bank) and its substituted trustee, defendant and respondent Northwest Trustee Services, Inc. (Northwest; sometimes together, Defendants), in this action alleging various claims arising out of nonjudicial foreclosure. In 1988, Plaintiffs refinanced their La Jolla home with Gibraltar Savings (Gibraltar or the lender), obtaining a mortgage loan secured by a deed of trust recorded against the home. By 1991, the Gibraltar note and trust deed had been transferred to Security Pacific Bank (Security Pacific), through savings and loan insolvency procedures involving the Resolution Trust Corporation (RTC). In 1992, Security Pacific was merged into the Bank, and Plaintiffs made payments to the Bank until 2007. Plaintiffs then experienced financial difficulties and stopped making regular mortgage payments, as well as related insurance policy payments.
In 2008, based on Plaintiffs' defaults, nonjudicial foreclosure proceedings were commenced by the Bank, in its capacity as the successor in interest to the lender, acting through its newly substituted trustee Northwest. In February 2009, Plaintiffs brought suit against the Bank and Northwest, alleging causes of action for quiet title, tort and contract theories, all claiming Defendants lacked authority to proceed with the foreclosure. After extensive motion practice, the trial court granted a joint motion for summary judgment by Defendants on the first amended complaint, and denied Plaintiffs' cross-motion for summary judgment. (Code Civ. Proc., § 437c; all further statutory references are to this code unless noted.)
On appeal, Plaintiffs contend there were procedural irregularities in the manner in which the foreclosure proceedings were conducted, because of the complicated history of the transfer of the loan, its note and trust deed among the various financial institutions involved. Plaintiffs also contend the trial court committed several evidentiary, procedural, and substantive legal errors in ruling on Defendants' summary judgment motion and their cross-motion, or abused its discretion. Plaintiffs contend they raised meritorious objections that must have been inadequately considered.
We reject Plaintiffs' challenges to the court's granting of the joint Bank/Northwest motion for summary judgment. Because we conclude the Bank demonstrated as a matter of law that it was a proper party to initiate the nonjudicial foreclosure action, and it appropriately appointed the successor trustee and followed statutory procedures, no legal, evidentiary, or procedural error is apparent on this record. (Civ. Code, § 2924, subd. (a)(1).) We grant Defendants' request for judicial notice on appeal regarding documentation of the bank merger (part III.A, post), and affirm the summary judgment.

Plaintiffs and appellants Jun Villanueva and Sharon Balverde sued defendants and respondents Cyprexx Services, LLC (Cyprexx) and attorney Tyneia Merritt after Cyprexx auctioned Villanueva's personal belongings following the nonjudicial foreclosure sale of his residence. The trial court sustained without leave to amend the demurrer of Cyprexx and granted defendant Merritt's special motion to strike the complaint as a strategic lawsuit against public participation (Code Civ. Proc.,[1] § 425.16, commonly known as the anti-SLAPP statute). Plaintiffs appeal from the ensuing judgments in defendants' favor. They contend their complaint states causes of action for wrongful eviction, conversion, violation of the Servicemembers Civil Relief Act (SCRA) (50 U.S.C. Appen. § 501, et seq.), replevin or claim and delivery, and unjust enrichment, and the trial court should have granted them leave to amend. They further contend the court erred in granting Merritt's anti-SLAPP motion because Merritt did not engage in protected speech, and they demonstrated a likelihood of prevailing on their SCRA cause of action. They argue the court should have granted them leave to amend to state a malicious prosecution cause of action against Merritt. We affirm the judgments.

rship, P.J.P. Enterprises, Inc. (referred to here as Escondido Mitsubishi). After the sale closed, Zivku sued DeLuca for fraud, alleging that DeLuca affirmatively misrepresented and/or failed to disclose information relating to Escondido Mitsubishi's financial strength. After a trial, the jury returned a special verdict finding Zivku did not meet his burden to prove DeLuca made a "false representation of an important fact to Jon Zivku" or that DeLuca failed "to disclose an important fact that Jon Zivku did not know and could not reasonably have discovered." Based on this verdict, the court entered a defense judgment.
On appeal Zivku challenges the sufficiency of the evidence to support the jury's findings. We reject his contentions and affirm the judgment.

C.L. (mother), the nonoffending parent of minor, R.D., appeals from the juvenile court’s orders denying her request to terminate jurisdiction and requiring individual counseling for R.D. and conjoint counseling for R.D. and mother, if appropriate. According to mother, because she is a nonoffending parent, and because the offending parent, R.D.’s father, M.D. (father), waived reunification services and any further contact with R.D., there was no factual basis to support the disposition order requiring counseling and, therefore, the juvenile court erred in denying her request to terminate jurisdiction.
We hold that there was sufficient evidence in the record to support the juvenile court’s orders denying mother’s request to terminate jurisdiction and requiring R.D. and mother to attend counseling. Therefore, the juvenile court did not abuse its discretion in retaining jurisdiction and entering the disposition order requiring counseling.

This is an appeal from a judgment dismissing a mandate petition by plaintiffs, Mercury Insurance Company, Mercury Casualty Company and California Automobile Insurance Company (“Mercury”), against Dave Jones, the Insurance Commissioner of the State of California (“the commissioner”). Mercury’s mandate petition sought review of the commissioner’s March 30, 2012 order, which rejected an administrative law judge’s proposed decision. The proposed decision dismissed a noncompliance proceeding (Ins. Code, § 1858.1) against Mercury on the ground the California Department of Insurance (“the department”) had violated due process principles and the Administrative Procedure Act (Gov. Code, § 11340 et seq.). Mercury’s appeal challenges the trial court’s order sustaining without leave to amend the commissioner’s demurrers to the petition on the grounds of failure to exhaust administrative remedies and failure to state a cause of action for a writ of mandate (Code Civ. Proc., [1] §§ 1085, 1094.5) and declaratory relief (§ 1060). We affirm.

The family came to the attention of the Department of Children and Family Services (DCFS) in January 2011, when Mother, Father, their daughter Mia, born in July 2009, and Mother’s three older children fathered by Shaun K. were living in a motel room. All the children had head lice and the older children had missed two weeks of school. There were also reports of Mother spitting on Father and the children.[2] Further investigation revealed that Mother had been involved in dependency proceedings in Orange County and that the three older children had lived with their paternal grandmother (Shaun’s mother) until two years earlier, when Mother regained custody.[3] In addition, Father’s parental rights over three older children had been terminated in an Orange County proceeding in 2002. Both Mother and Father acknowledged criminal histories and use of drugs. Father had completed a drug program and reported being clean for more than three years. But Mother acknowledged using methamphetamine and marijuana recently, in January 2011 and December 2010 respectively. Voluntary family maintenance services were initiated. Mother agreed to voluntary placement of the three older children with their paternal grandmother. Mother and Father agreed to drug test and Mother agreed to enroll in a drug program and to obtain a mental health evaluation. Mother subsequently failed to appear for drug tests in April and failed to participate in a drug program. In May 2011, DCFS filed a petition under section 300. Because Father had appeared for drug tests and had consistently tested negative, at DCFS’s recommendation the court placed Mia with Father. Mother was permitted monitored visitation only.
In July 2011, Mother and Father pled no contest to allegations that Mother had an unresolved history of drug abuse, including use of cocaine and methamphetamine, and that Father knew of Mother’s drug abuse and failed to protect Mia.[4] The court ordered Mother to participate in a parenting program, substance abuse counseling with random drug tests, and mental health counseling including a psychiatric evaluation. She was granted monitored visitation, but Father was not to be the monitor. The court ordered Father to drug test on demand one time, to attend a parenting class if DCFS could find an affordable one that fit into his schedule, and to attend conjoint counseling with Mother if DCFS set it up and found a counselor who would not charge Father and meet in accordance with his schedule.[5] It also ordered family maintenance services for Father, Mia and Mother.

Defendant Maurice Johnson appeals from his convictions of attempted murder, shooting at an occupied motor vehicle, assault with a firearm and possession of a firearm by a felon. He contends: (1) imposition of a Penal Code section 667.5 enhancement on two counts was error; (2) the trial court failed to state valid reasons for selecting the upper term; and (3) trial counsel was ineffective in failing to object to these two sentencing errors.[1] We affirm.

A jury convicted defendant Ivan Quiroz of burglary (Pen. Code, § 459), finding the burglary was in the first degree because defendant entered an inhabited dwelling with the intent to commit larceny.[1] Quiroz was sentenced to the upper term of six years in state prison.
Defendant contends on appeal that the trial court erred by admitting testimony by a fingerprint expert that her analysis had been verified by two other forensic analysts in her laboratory, in violation of his Sixth Amendment right to confront adverse witnesses. Because we conclude any error in admitting the testimony was harmless beyond a reasonable doubt, we affirm the judgment.

Reginald Louis Morgan appeals from the judgment following his convictions for attempted voluntary manslaughter and other offenses against his wife, Tina P. We affirm.

Appellant C.E. appeals from an order terminating juvenile court jurisdiction. He contends he was subject to the transition jurisdiction of the juvenile court as he had satisfied the statutory criteria required under Welfare and Institutions Code section 450, subdivision (a).[1] He argues this entitled him to a hearing pursuant to section 452. Appellant contends the trial court erred in not providing this hearing, and the order terminating juvenile court jurisdiction should be reversed. We find appellant’s circumstances fail to meet the statutory criteria under section 450, subdivision (a)(1)(A). Therefore, he is not subject to the juvenile court’s transition jurisdiction and is not entitled to a hearing under section 452. We affirm the court’s order.

Defendant and appellant Edwin Morales (defendant) was convicted of second degree murder. (Pen. Code, §§ 187, subd. (a)[1]). On appeal, defendant contends that the trial court erred in responding to a question posed by the jury because it did not do so adequately, and the abstract of judgment should be corrected to reflect the custody credits awarded him by the trial court.
We order that the abstract of judgment be corrected to state that defendant is awarded 1,409 days of custody credit consisting of 1,409 days of actual custody credit. We otherwise affirm the judgment.

Defendant and appellant Russell Garrett (defendant) was convicted of murder. (Pen. Code, §§ 187, subd. (a) and 189[1]). On appeal, defendant contends that he received ineffective assistance of counsel when his counsel acquiesced in the trial court’s answer to a question posed by the jury. We affirm the judgment.

Anthony Dashaun Brown appeals from a conviction for five counts of resisting an executive officer. He contends (1) this court should conduct an independent review of the in camera Pitchess[1] hearing; (2) the trial court erred in not instructing the jury with the definition of “unlawful use of force or violence”; (3) the trial court erred when it admitted a recorded 911 call; (4) the trial court erred in admitting evidence that appellant was subject to a warrant at the time of his arrest; and (5) the trial court miscalculated his presentence conduct credits under Penal Code section 4019.[2] Respondent does not object to our independent review of the Pitchess hearing but disagrees with appellant’s other contentions. Additionally, respondent contends that the court should amend the abstract of judgment to correct certain fees and fines. We agree with respondent that the abstract of judgment should be corrected, but in all other respects, we affirm.

Appellant Warren Earnest Brown pled no contest to one count of assault on a peace officer in violation of Penal Code section 245, subdivision (c),[1] in case number YA068285. The trial court imposed and stayed a four-year prison term, and placed appellant on formal probation. Two years later, appellant was arrested and charged with three counts of battery with injury on a peace officer in violation of section 243, subdivision (c)(2) and three counts of resisting an executive officer in violation of
section 69, in case number TA112635. The trial court found appellant in violation of his probation in case number YA068285, revoked that probation and imposed the previously stayed term of four years in state prison. Case number TA112635 was dismissed.
Appellant appeals from the order revoking probation. (§ 1237, subd. (b).) He contends that the trial court erred in failing to declare a doubt as to appellant's competence sua sponte. We affirm the trial court's order.