CA Unpub Decisions

Appellants Monex Credit Company and Monex Deposit Company (Monex) appeal from an order denying a motion to compel arbitration of a dispute with one of its customers, respondent Daniel J. Nibler. Nibler sued Monex, a precious metals trading company in which he had invested an inheritance, for nine causes of action relating to losses suffered through margin trading with Monex. Monex, relying on account documents Nibler signed at the time he invested his money, moved to compel arbitration.
The trial court denied Monex’s motion, finding the arbitration provisions unconscionable. Nibler argues the arbitration provisions here are nearly identical to those at issue in another case involving Monex, Parada v. Superior Court (2009) 176 Cal.App.4th 1554 (Parada). We find, however, that several important changes have been made to the arbitration provisions, including the ability to opt out completely, that preclude a finding of unconscionability. We therefore reverse.

Pursuant to a plea agreement, Carlos G. (Minor) admitted count 1 in a juvenile court petition, which alleged he imported a controlled substance in violation of Health and Safety Code section 11379, subdivision (a). Thereafter the court dismissed the remaining counts and allegations with a Harvey[1] waiver.
At the disposition hearing, the court placed the Minor on probation subject to a 60 to 90-day commitment to the short term offender program (STOP) and a number of other conditions. The Minor, who is a U.S. citizen, was placed with his mother in Tijuana, Mexico.
The Minor appeals contending the juvenile court erred in failing to calculate the Minor's predisposition custody credits and that one of the probation conditions is unconstitutionally vague and overbroad. We agree the court was required to calculate the Minor's predisposition custody credits, although such credits would not serve as a deduction from the time required to participate in the STOP program. Otherwise, we will reject the Minor's remaining contention and affirm.

Anthony Oliver appeals the judgment following his guilty plea. 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). Oliver did not respond 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.

In this appeal Shawn Woodall challenges the trial court's order revoking his probation. He argues that the statute governing probation revocation proceedings (Pen. Code,[1] § 1203.2) violates the federal Constitution (both facially and as applied to him) because (1) it permits a warrant to be issued for a probationer's arrest unsupported by statements made by oath or affirmation, and (2) it does not require a preliminary probable cause hearing before a final revocation hearing as mandated by the United States Supreme Court in Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey). We reject these contentions and affirm the judgment.[2]

Christopher Durio's (Christopher) daughter, Shalay Durio (Shalay),[1] filed a second amended complaint containing claims for wrongful death, negligence, and battery against the California Department of Corrections and Rehabilitation (the Department). In the second amended complaint, Shalay alleged that in June 2010, the Department's correctional officers attempted to end an altercation between Christopher and a cellmate by negligently spraying pepper spray in Christopher's face. Shalay further alleged that immediately following the incident, the Department's officers knew or had reason to know that Christopher was in need of immediate medical care, that they failed to summon such care, and that Christopher died as a result. Shalay claimed that the Department was liable for failing to summon medical care pursuant to Government Code section 845.6.[2]
The Department filed a motion for summary judgment in which it maintained that undisputed evidence established that it was immune from all of Shalay's claims as a matter of law. The trial court granted the Department's motion and entered judgment in its favor. Shalay appeals, claiming that the trial court erred in granting summary judgment. We affirm.

Edgar M. Salazar pled guilty to one count of a lewd act upon a child under 14 (Pen. Code,[1] § 288, subd. (a)) and one count of furnishing an alcoholic beverage to a person under the age of 21 (Bus. & Prof. Code, § 25658, subd. (a)). On the same day, Salazar pled guilty in another case to one count of using the personal identifying information of another (§ 530.5, subd. (a)) and one count of perjury in the application for a driver's license (§ 118, subd. (a)).
The court sentenced Salazar to serve the middle term of six years in state prison on the count of a lewd act upon a child under 14 (§ 288, subd. (a)), with 64 days of actual credits plus nine days of conduct credits, for a total of 73 days' credit. On the count of furnishing an alcoholic beverage to a person under the age of 21 (Bus. & Prof. Code, § 25658, subd. (a)), the court sentenced Salazar to serve 180 days concurrently with the six-year sentence.

Plaintiff and appellant James Do appeals the judgment denying his petition for a writ of administrative mandamus against defendant and respondent Regents of the University of California (University). (Code Civ. Proc.,[1] § 1094.5.) Do's employment at a University medical facility was terminated in August 2009, based on administrative findings his statements and acts violated an employment policy against workplace violence or threats.

A modification decision.

Christopher Dean DaCosta (Defendant) appeals a judgment following his jury convictions of first degree murder (Pen. Code, § 187, subd. (a))[1] and kidnapping (§ 207, subd. (a)). On appeal, he contends: (1) he was denied his constitutional right to effective assistance of counsel because his defense counsel did not competently investigate his defenses; (2) the trial court erred by denying his motion for new trial based on ineffective assistance of counsel; (3) he was denied his constitutional right to effective assistance of counsel when, in moving for a new trial, his new appointed counsel did not correct misstatements of law; (4) he was denied his constitutional right to effective assistance of counsel when his defense counsel did not request a pinpoint instruction on the felony murder doctrine; (5) the trial court erred by imposing consecutive sentences for his two offenses in violation of section 654; and (6) the abstract of judgment should be corrected to reflect the number of presentence custody credits to which he is entitled.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment.
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.)

Defendant Isaac Aaron Richard pled guilty to robbery (Pen. Code, § 211) and street terrorism (Pen. Code, § 186.22, subd. (a)). Defendant also admitted a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)). In accordance with the terms of his plea, the trial court sentenced defendant to serve an aggregate term of 18 years in state prison.
At sentencing, the trial court ordered defendant to pay numerous fines and fees including restitution in an amount to “be determined by the Department of Corrections [and Rehabilitation].” The trial court also ordered defendant to pay a $240 restitution fine (Pen. Code, § 1202.4) and a $24 “surcharge.”
On appeal, defendant contends the trial court erred in ordering the Department of Corrections and Rehabilitation to calculate restitution. We disagree and conclude the trial court’s order was proper.
Defendant also contends the trial court erred in imposing a $24 “surcharge” without identifying the statutory authority for that fee and asks this court to vacate the fee. The People concede the trial court was required to identify the statutory basis for the surcharge and request remand on that issue alone.

Like spectators at a sporting event with a beach ball, some litigants manage to keep an action bouncing along in the air indefinitely. This is an appeal from the denial of a motion for legal fees incurred in the course of confirming the ruling of a mediator acting as an arbitrator, involving a settlement reached in the course of mediation of an underlying action. We shall affirm the trial court’s order denying the legal fees.

Plaintiff Joseph Helm obtained a $3.6 million default judgment against defendant Michael Petz. "[Appellant’s Appendix (“AA”) 5-8]" The trial court subsequently granted Petz’s motion to set aside his default and the default judgment, after Petz argued he was not properly served with the summons, complaint, or statement of damages.
Helm appeals from the trial court’s order setting aside Petz’s default and the default judgment entered against him. We find no error, and shall affirm the trial court’s order.

During bifurcated guilt and sanity proceedings before the trial court, defendant Timothy Griffin pleaded guilty to all charges—four counts of robbery, seven counts of assault with a firearm, and two counts of carjacking—received a sentencing lid of 23 years four months, and waived his right to a jury trial on the issue of sanity. After the sanity phase, the court found defendant failed to meet his burden of proof to show he was insane at the time of the offenses.
Defendant appeals his conviction, alleging (1) his jury waiver for the sanity trial was procured involuntarily due to judicial involvement, (2) this judicial involvement constitutes judicial plea bargaining that renders the sanity jury waiver invalid, and (3) there was insufficient evidence to support the trial court’s finding that defendant failed to meet his sanity burden of proof. We find the trial court did not engage in judicial plea bargaining, and the trial court’s sanity finding was supported by sufficient evidence. Therefore, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 4, 2008, defendant, with a getaway bicycle waiting outside, armed with a loaded semiautomatic handgun and wearing a hoodie and a mask, went into a Wells Fargo Bank. Holding his gun, defendant jumped over the counter and said, “ ‘Now, everyone is going to cooperate with me, right?’ ” Defendant took money from each cash drawer. A bank customer, who had retrieved his own gun from his car, pointed the gun at defendant, demanding that defendant drop his gun. Defendant ducked below the counter, stood back up pointing his gun at the armed customer, and fled out the back door of the bank, leaving his escape bicycle behind.