CA Unpub Decisions

A jury convicted John Harold Ives of sexually abusing his daughter over a period of several years. On appeal, Ives argues that the trial court’s admission of his statements made during a custodial interrogation violated Miranda v. Arizona (1966) 384 U.S. 436 and the prosecutor committed reversible error in her closing argument when she misstated the law on sexual intercourse by telling the jury that a penis “hitting” a vagina, or the lips of vagina, is sexual intercourse and rape on a child. We affirm the judgment.

In this post-remittitur opinion, we impose $11,562.50 in monetary sanctions against attorney Kenneth P. Roberts and law firm K.P. Roberts & Associates (collectively Roberts), counsel for plaintiff and appellant Anabi Oil Corporation (Anabi), for filing a frivolous motion to recall the remittitur. In our initial opinion, we affirmed an order granting in part and denying in part an anti-SLAPP motion filed by defendants and appellants iFuel, Inc., and Artashes Yepremyan. We did not address the issue of iFuel and Yepremyan’s entitlement to appellate attorney fees, which the parties had not raised. In our disposition, we ordered that “Anabi, iFuel, and Yepremyan shall bear their own costs on appeal.” (Anabi Oil Corp. v. iFuel, Inc. (July 6, 2021, No. B301899) 2021 Cal.App.Unpub. LEXIS 4407, at *42 (Anabi I).) Following issuance of the remittitur, which restated our order regarding costs, iFuel and Yepremyan filed in the trial court a motion to recover appellate attorney fees under the

Robert C. Baral sued David Schnitt, alleging fraud and multiple breaches of fiduciary duty concerning IQ BackOffice LLC (IQ), a company they owned and managed. After Schnitt successfully moved to strike portions of the complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16), a jury awarded Baral $2.5 million in compensatory damages and $1 million in punitive damages. The trial court denied Schnitt’s motion for judgment notwithstanding the verdict (JNOV) but granted his motion for new trial on the issues of consent and waiver, finding that Schnitt met his burden of proof that Baral waived his right to damages and the evidence established that no waiver was made under duress. The trial court also granted Schnitt anti-SLAPP attorney fees.

A jury convicted Garry Frank Reynolds of four counts of animal cruelty (Pen. Code, § 597, subd. (b); counts 5, 6, 7, and 8 of the information). The court imposed a determinate prison term of two years for count 5, with concurrent terms of two years for counts 6, 7, and 8 respectively. Reynolds appeals, contending that the trial court erred in failing to stay the convictions on counts 6, 7, and 8 under section 654. We disagree and will affirm.

Appellant Abdelkader Elgawady sued the City and County of San Francisco (City), claiming he suffered personal injury from a dangerous condition of public property when he tripped over a metal plate affixed to a City sidewalk. The trial court granted the City’s motion for summary judgment, finding as a matter of law that the City lacked constructive notice of the allegedly dangerous condition. On appeal, Elgawady contends the trial court erred in granting the motion because triable issues of fact remain as to whether the City had constructive notice of the condition. He also asserts that the court erred in sustaining the City’s evidentiary objections to opinions expressed by his expert witness and in denying his motion for a continuance.

In 2007, a jury found defendant Ignacio Jimenez guilty on two counts of rape by force or violence; seven counts of lewd conduct by force or violence; and five counts of aggravated sexual assault on a child under the age of 14. The trial court imposed a prison term of 210 years to life. We affirmed the judgment on appeal.

In 2002, appellant Sung Yue Lai and respondent Karen Lai’s marriage ended with a judgment of dissolution that incorporated a marital settlement agreement addressing the division of the parties’ assets. In 2009, Sung Yue unsuccessfully sought to set aside the judgment, arguing that Karen had denied him his lawful share of the community estate, including but not limited to four real properties, several financial accounts, and Karen’s pension.

Stephen Graham suffered paralyzing injuries when his bicycle collided with an oncoming car that turned left across his path down Highway 9 in the City of Saratoga. Six years before the collision, Fehr & Peers, the City’s on-call traffic engineer, had produced an initial plan for certain bicycle safety measures at the intersection where Graham was later injured. The City thereafter engaged another firm, BKF Engineers, to design and construct bicycle safety improvements at the site.

Defendant Morgan H. (mother) appeals from the juvenile court’s order terminating parental rights pursuant to Welfare and Institutions Code section 366.26. Mother argues the trial court erred by failing to ensure respondent Orange County Social Services Agency (SSA) complied with the provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; ICWA). We agree, conditionally reverse, and remand with directions to comply with ICWA.

H.F. (Mother) appeals from an order terminating her parental rights over her now 11-year-old daughter, E.F. (Minor), at a hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). She contends the Orange County juvenile court (the court) should not have terminated her parental rights because Minor’s relationship with her two half siblings qualified for the sibling relationship exception under section 366.26, subdivision (c)(1)(B)(v). We disagree. Mother failed to establish the sibling relationship exception to termination of parental rights. We accordingly affirm the order.

Alexis M. appeals the juvenile court’s order terminating parental rights to her now eight-year-old son, L.P., and four-year-old daughter, M.P., and selecting adoption as their permanent plan. (Welf. & Inst. Code, § 366.26.) Mother contends the juvenile court erred by declining to apply the beneficial parent-child relationship exception to adoption and failing to consider the sibling relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i) & (v).) We affirm.

Defendant Rakia Davis contends on appeal that her case must be remanded for resentencing because the trial court was unaware it had discretion to sentence her to concurrent terms. We agree the court did not believe it had discretion to sentence defendant to concurrent terms. However, remand is unnecessary as the court clearly indicated its intent to impose a consecutive sentence.

Defendant Jason James was charged with damaging a truck during an argument with his former girlfriend, Ashley C., and was convicted by jury of felony vandalism. (Pen. Code, § 594, subds. (a), (b)(1).) The trial court suspended imposition of sentence and admitted defendant to felony probation for 36 months, with the first 120 days to be served in jail.

A jury convicted Daniel Aaron Rhoads of second degree murder and found true an allegation of personal and intentional discharge of a firearm within the meaning of Penal Code section 12022.53, subdivision (d). The firearm enhancement added a prison term of 25 years to life to Rhoads’s sentence. On appeal, Rhoads contends the trial court was unaware of its discretion to reduce the punishment by substituting a lesser included but uncharged enhancement under subdivision (b) or (c) of the same statute. The California Supreme Court’s recent decision in People v. Tirado (2022) 12 Cal.5th 688 supports this claim. The matter will therefore be remanded to allow the trial court to consider all sentencing options under section 12022.53.