CA Unpub Decisions

This is an appeal from the judgment after trial in a wrongful death action by the parents of the decedent. The action was brought pursuant to Labor Code section 3706, which permits dependents of a deceased employee to bring a civil action for damages for the death of the decedent, caused by an employment related injury, against the employer of the decedent when the employer lacks workers compensation insurance. Defendant and appellant, Capco Resource Corporation, contends there was insufficient evidence to support the jurys findings that respondents were dependents of decedent and that appellants conduct was a cause of decedents death. Appellant also contends the trial court abused its discretion in (1) permitting respondents to reopen their case after appellants motion for nonsuit was granted, to introduce evidence that respondents were dependents of decedent; (2) excluding evidence of contracts appellant contends made decedent and his supervisor independent contractors rather than employees; (3) excluding evidence that decedent was under the influence of marijuana at the time of the incident resulting in his death; and (4) permitting the use of a special verdict form that required the jury to find whether appellants conduct was a cause of the incident resulting in decedents death, rather than a substantial factor in that incident.

Plaintiffs bought a used motor home from defendant and were misinformed about its mileage. In 1999, plaintiffs filed suit on behalf of themselves and the general public pursuant to Californias Unfair Competition Law (UCL) (Bus. & Prof. Code, 17200 et seq.). A settlement was reached and plaintiffs dismissed their lawsuit in its entirety with prejudice. Plaintiffs received their settlement payment, but the settlement procedures for the general public claims were not implemented. Nearly four years later, plaintiffs filed another lawsuit against defendant seeking specific performance of the provisions of the settlement documents concerning the general public claims. After a bench trial, the superior court rejected plaintiffs claim for specific performance. The superior court ruled that it did not have subject matter jurisdiction to enforce the settlement terms regarding the general public claims or, alternatively, plaintiffs failed to prove the existence of obligations that could be specifically enforced. The judgment is affirmed.

A jury found defendant Debra Lynn Conwell guilty of possession of a controlled substance (Health & Saf. Code, 11377(a)) and possession of controlled substance paraphernalia (Health & Saf. Code, 11364). The sole issue in her appeal is whether statements she made were admitted in violation of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]. Because defendant was not detained while she made these statements, the court did not err in admitting them. The judgment is affirmed.

Jesse G., an alleged father of Micah B., appeals from the juvenile courts orders (1) denying Jesses request to continue the permanency hearing with regard to then almost six month old Micah B., and (2) terminating Jesses parental rights. Court affirm.

After a bench trial in this case, the court issued declaratory relief and granted a permanent injunction. That latter relief enjoined the current owners of the Hacienda Gardens Shopping Center in San Jose from constructing improvements to the center that violated the terms of a 1986 drug store lease between the prior owners and Payless Drug Stores Northwest, Inc., which, through acquisition, had assigned the lease to Thrifty Payless Inc., doing business as Rite-Aid. The pertinent lease terms concerned the landlords inability to construct buildings in the (defined) common facilities of the center, which included parking areas, without the tenants consent and the landlords obligation to maintain a ratio of two square feet of parking area to one square foot of building area in the shopping center. In late 2004, Hacienda Gardens obtained the City of San Joses approval to go forward with the proposed improvements. It began demolition and planned to go forward with construction of the proposed redevelopment even though Rite-Aid had refused to give its consent as provided in the lease and had expressed its objection to any reduction in the parking area ratio, positions which Hacienda Gardens argued were unreasonable. Rite-Aid sued for injunctive relief to enforce the terms of the lease, a remedy provided for therein, and the trial court issued the permanent injunction enjoining Hacienda Gardens threatened violations of the lease even though the court also found that the proposed improvements would be beneficial to the community and surrounding neighborhood and that Hacienda Gardens had spent significant time and money in pursuing the development as proposed. The judgment is affirmed.

In this appeal, the father of a dependent child challenges the juvenile court order terminating his parental rights. He claims that the court erred in finding that the benefits of adoption for the child outweigh the parental relationship. Court disagree and affirm the order.

Brian Allen, a former employee of Scios Inc., appeals from four orders of the Alameda County Superior Court issued after a hearing, granting one two-year injunction to stop civil harassment of Scios employee Silvy Puthukkeril (Code Civ. Proc., 527.6)[1] and three two-year injunctions prohibiting violence or threats of violence against Scios employees Lee Mermelstein, Ulrich Ernst, and Brian Williams. ( 527.8.) Allen contends that Scios wholly contrived the allegation of threat of violence; that [t]he injunctions granted under . . . section 527.8 do not meet the burden of proof, related to the primary claim of insanity; and that [t]he injunction granted under . . . section 527.6 does not fit the intent of the statute. We shall construe these claims as asserting that substantial evidence does not support the issuance of the injunctions. Allen further contends that he was denied his due process right to cross examine plaintiffs and to testify in his own defense. Finally, Allen contends that [a]ll injunctions were issued in violation of [the Norris LaGuardia Act (29 USC 101 et seq.)]. Court disagree with all those contentions and affirm the orders appealed from.

Defendants Thomas Moore and Dainette Robinson appeal from judgments of conviction for first degree robbery (Pen. Code, 211),[1]first degree burglary ( 459) and false imprisonment by violence or menace ( 236). Moore was also convicted of possession of a firearm by a felon. ( 12021, subd. (a)(1).) Wanda Sanders appeals from a judgment of conviction for possession of controlled substances. (Health & Saf. Code, 11350, subd. (a).)

Moore and Robinson each contend the trial court erred in not striking the victims testimony after he asserted his Fifth Amendment rights regarding an arrest unrelated to the crimes at issue here. They also contend error for failure of the trial court to instruct the jury on the lesser included offense of false imprisonment without violence or menace. Sanders urges the court erred in allowing the prosecution to elicit a statement made by Sanders, previously ruled inadmissible in violation of her Miranda[2]rights, during redirect examination of a police officer. Each appellant challenges the sentences received pursuant to the United States Supreme Court decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Additional sentencing errors are raised, a number of which respondent concedes.
Court conclude that the trial court did not commit prejudicial error in refusing to strike the victims testimony or in failing to instruct on the lesser included offense. Nor did the court abuse its discretion in allowing admission of Sanderss statement on redirect examination. Accordingly, Court affirm the judgments of conviction.

Appellant Javier Bocanegra appealed from his conviction of attempted murder and possession of a firearm by a felon, contending that the trial court erred in failing to give, sua sponte, instructions on attempted manslaughter and assault with a deadly weapon and in imposing an upper term sentence based on judicial findings. Court issued an opinion dated September 29, 2006 affirming the judgment.

Charles David Venzor, Jr. appeals his conviction, by jury, of the forcible rape (Pen. Code, 261, subd. (a)(2))[1], and sodomy by force ( 286, subd. (c)(2)), of K.M. The jury further found that appellant inflicted great bodily injury on K.M. during both crimes. In the bifurcated portion of the trial, at which appellant waived jury, the trial court found that appellant was eligible for sentencing on the rape count pursuant to section 667.61, subdivision (a) because he had a prior conviction of sexual penetration with a foreign object. ( 289, 667.61, subd. (c),(d)(1).) The trial court further found that appellant had three prior serious or violent felony convictions within the meaning of the Three Strikes Law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), that he had one five-year prior serious felony conviction ( 667, subd. (a), 1192.7, subd. (c)(25)), and that he had served three prior prison terms. ( 667.5, subd. (b).) As a result, it sentenced appellant to a total term in state prison of 29 years plus 75 years to life.
The judgment is affirmed.

Plaintiffs, Takako Hawkins, Clive Hawkins, and Stan Mandell, the conservator of the Estate of Thelma Jean Fenter, appeal from a final judgment resulting from the entry of two orders in favor defendants: Merrill Lynch, Pierce, Fenner & Smith, Inc.; Merrill Lynch Co. Inc.; Merrill Lynch Life Agency, Inc.; Merrill Lynch Insurance Group Services, Inc. (sometimes referred to collectively as the Merrill Lynch defendants); and John H. Pardee. Plaintiffs challenge an order sustaining the demurrer to certain causes of action in the first amended complaint. Plaintiffs also challenge a later order granting defendants summary judgment motion. This litigation involves Treasury Investment Growth Receipts. The Third Circuit described Treasury Investment Growth Receipts as follows: Zero-coupon bonds are debt securities on which no interest is paid prior to maturity. At maturity, a one-time payment incorporating the principal repayment and accrued interest is made. These securities are therefore sold at a discount from face value. [] [Treasury Investment Growth Receipts] . . . are a proprietary product of Merrill Lynch. [Treasury Investment Growth Receipts] consist of United States Treasury bonds that have been repackaged by Merrill Lynch into zero-coupon securities. Specifically, a [Treasury Investment Growth Receipt] is a receipt that evidences ownership of a future payment of interest or principal on Treasury bonds which are purchased by Merrill Lynch and are held by a custodian for the benefit of the [Treasury Investment Growth Receipt] holder. (Ettinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (3rd Cir. 1987) 835 F.2d 1031, 1032, fn. 1.) We conclude: the demurrers to the first amended complaint should not have been sustained as to the sixth, seventh, eighth, and eleventh causes of action; the order granting summary judgment as to the Merrill Lynch defendants should not have been entered; and the order granting summary judgment as to Mr. Pardee must be deemed to be an order entering summary adjudication of the fifth cause of action in the second amended complaint. Court affirm the judgment.

Appellant Douglas Wayne McCray appeals his conviction by jury of attempted murder (Pen. Code, 664 & 187, subd. (a))[1]and assault with a deadly weapon. ( 245, subd. (a)(1).) The jury found true allegations that appellant personally inflicted great bodily injury in the commission of both crimes ( 12022.7, subd. (a)), and that he used a deadly weapon, a knife, in the commission of the attempted murder. ( 12022, subd. (b)(1).)
The trial court sentenced appellant to 13 years in state prison for the attempted murder, imposing the 9-year upper term plus consecutive 3-year and one-year terms for the great bodily injury enhancement with the use of a deadly weapon. ( 12022.7, subd. (a) & 12022, subd. (b)(1).) The court imposed and stayed two consecutive 3-year sentences for the assault with a deadly weapon and the great bodily injury enhancement. ( 245, subd. (a)(1), 12022.7, subd. (a) & 654.) Appellant contends that his right to confront witnesses was violated by testimony of the investigating officer that referred to witness statements, that his conviction for assault with a deadly weapon should be reversed because it is a lesser included offense of attempted murder, that he received ineffective assistance of counsel because his attorney's questions opened the door to his prior misdemeanor convictions, and that imposition of the upper term for attempted murder violated his right to a jury trial. Court disagree and affirm.

A modification decision.

Plaintiff Joe D. Turner (Turner) appeals an order denying a request to enjoin an arbitration. Defendants Asset Allocation Advisors, Inc. (the company), Gregory E. Schultz (Schultz), and Bruce D. Grenke (Grenke) have moved to dismiss this appeal as moot. Court grant the motion and dismiss the appeal.