CA Unpub Decisions

Plaintiffs and real parties in interest Adam Hohnbaum, Illya Haase, Romeo Osorio, Amanda June Rader and Santana Alvarado (collectively plaintiffs) sued defendants Brinker Restaurant Corporation, Brinker International, Inc., and Brinker International Payroll Company, L.P. (collectively Brinker) on behalf of themselves and similarly situated current and former California hourly restaurant employees of Brinker (the proposed class), alleging that Brinker had violated numerous California wage and hour laws and California's unfair competition law (Bus. & Prof. Code, 17200 et seq.). Specifically, plaintiffs alleged that Brinker failed to provide certain rest breaks or meal periods, or compensation in lieu thereof, to members of the proposed class as required by the California Labor Code and implementing regulations of the Industrial Welfare Commission (IWC),[2]and also required them to "work off the clock" during meal periods. Court order that a peremptory writ issue with directions that the superior court vacate its order granting class certification.

Defendants Dinesh and Dixie D'Souza appeal from the trial court's judgment awarding plaintiff Sparber Rudolph Annen, APLC (SRA) damages as determined by a jury, plus interest on the damage award calculated at 1.5 percent per month. The trial court concluded that the written retainer agreement (Agreement) the parties entered into specified an interest rate of 1.5 percent per month. The D'Souzas challenge the trial court's interpretation of the contract, arguing that the 1.5 percent per month charge was a "late fee," and not a stipulated prejudgment interest rate. According to the D'Souzas, any award of prejudgment interest should be calculated using the statutory default rate of 10 percent per year, as provided in Civil Code section 3289, subdivision (b).
Court conclude that the Agreement provides for interest at the rate of 1.5 percent per month on fees and costs that remain unpaid 30 days after billing. Pursuant to section 3289, subdivision (a), 1.5 percent per month is the applicable interest rate for calculating an award of prejudgment interest in this case. Court therefore affirm the judgment of the trial court.

Andree Francis Calac (Andree) appeals from a judgment convicting him of two counts of second degree murder of Marlene Magee (Marlene) and her unborn child. Andree argues the evidence warranted an instruction on voluntary manslaughter. Court affirm the judgment.

Yvonne A. appeals an order of the juvenile court dismissing the section 300,[1]subdivision (b) petitions seeking to protect her minor children, Levi A. and Shyanne A. (the minors) from their maternal grandfather, David L. Yvonne contends the juvenile court erred by dismissing the petitions and returning the minors to David's custody because there was evidence showing they would be at risk of suffering harm in his care. She further asserts the court erred by weighing evidence presented at the contested jurisdiction hearing after Yvonne had entered a no contest plea. The San Diego County Health and Human Services Agency (Agency) asserts the arguments raised by Yvonne on appeal are moot because following the juvenile court's order, the family court removed the minors from David's custody and returned them to Yvonne's custody. The minors, therefore, are no longer in need of the juvenile court's protection. Court agree with the Agency. Accordingly, Court dismiss the appeal.

After the trial court denied a motion to dismiss based on alleged prosecutorial misconduct, Michael Bickham entered negotiated guilty pleas to voluntary manslaughter (Pen. Code, 192, subd. (a)) and possession of a firearm by a convicted felon (Pen. Code, 12021, subd. (a)(1)). In accordance with the stipulated sentence in the plea bargain, the trial court imposed a 21 year prison term the upper term of 11 years on the manslaughter count and a consecutive upper term of 10 years on the firearm possession count.

Gregory W. appeals an order awarding legal and physical custody of his son, L.D., to L.'s mother, Heidi D., and ordering supervised visits for Gregory with L. as arranged between Heidi and Gregory. He contends the visitation order was not in L.'s best interest and effectively precludes their visitation. Court affirm the order.

Lisa H. appeals a judgment terminating her parental rights to her minor son Ryan F. under Welfare and Institutions Code section 366.26. Lisa contends the evidence was insufficient to support the court's finding Ryan was adoptable and the court erred by denying her request for a continuance. Court affirm the judgment.

Shanna M. appeals judgments declaring her children, Jason J. and Kathryn M., dependents of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (j). She also appeals orders removing the children from her custody under section 361, subdivision (c)(1). Court affirm the judgments and orders.

A modification decision.

Plaintiffs Leonard and Susan Sanchez (plaintiffs) signed a contract with defendant Courtesy Oldsmobile Cadillac, Inc. (defendant) to lease a truck for use in plaintiffs air conditioning and heating business. Defendant hired a third-party, Stahl/Scott Fetzer Company (Stahl), to install a 12-foot stake bed on the truck. When Stahl was unable to attach a 12-foot stake bed to the subject vehicle, it requested authorization from defendant to install a 14-foot bed instead. Defendants salesman allegedly contacted plaintiff, Mr. Sanchez, and obtained oral approval for the installation of a 14-foot truck bed. However, Mr. Sanchez denied that such approval was ever given, and he stressed that a truck with a 14-foot bed would be too long for his secure garage. After the truck was completed with a 14-foot bed and experienced electrical problems during a test drive, plaintiffs gave written notice of rescission to defendant. Plaintiffs continued to make payments under the lease to protect their good credit. The case was tried by the court on a rescission cause of action only and after a three-day trial, the matter was taken under submission. Sometime later, without any explanation and without issuing a tentative decision or statement of decision, the trial court simply entered judgment in favor of defendant. Plaintiffs now appeal, contending the trial court erred in entering judgment without rendering a tentative decision or statement of decision. Court agree, and reverse with instructions that the trial court comply with this statutory process by issuing a proper statement of decision.

On February 3, 2005, the Merced County District Attorney filed an information in superior court charging appellant and codefendant Samuel Rojas as follows: count I--conspiracy to commit murder with five overt acts (Pen. Code,[1] 182, 187) and count IIattempted murder ( 664, 187). As to both counts, the district attorney specially alleged appellant proximately caused great bodily injury or death ( 12022.7, 12022.53, subd. (d)); personally used a firearm ( 12022.5, subd. (a)(1)); and personally inflicted great bodily injury ( 12022.7, subd. (a)). The matter is remanded to the trial court which is directed to (a) stay the punishment imposed on count II pursuant to section 654; (b) stay the section 12022.53 enhancement attached to count II pursuant to section 654; and (c) calculate the appropriate number of presentence conduct credits. In all other respects the judgment is affirmed. The trial court is further directed to prepare an amended abstract and transmit certified copies of the amended abstract to all appropriate parties and entities.

Defendant Gerald Tucker is before this court for the third time in this case after we remanded his case for further proceedings on two previous occasions. He claims the trial court abused its discretion when it failed to strike his prior convictions under the Three Strikes Law. In addition, he argues that a consecutive sentence could not be imposed because his murder conviction, arising from a 1969 murder, merges with his other sentences. Court affirm.

Laura C. Koscki was seriously injured when her coworker, Gerald Henry Herbert, negligently operated a tractor-trailer rig, causing it to leave the roadway. Koscki sued Herbert and their employer, Consolidated Freightways Corporation (Consolidated), for her injuries.
The trial court granted Herberts motion for judgment on the pleadings based on his assertion that Kosckis exclusive remedy was workers compensation benefits. The trial court also denied Kosckis request for leave to amend to avoid the exclusivity provisions of the workers compensation statutes. Finally, the trial court also granted judgment in favor of Consolidated for reasons that are unclear from the record.
Court conclude the trial court abused its discretion in refusing to grant Koscki leave to amend her complaint to avoid the exclusivity provisions of the workers compensation statutes. We also conclude the trial court erred in granting judgment in favor of Consolidated. Court, therefore, reverse the judgment.

Appellant Alfred Guillermo Villa was convicted after jury trial of commercial burglary (count 1) and petty theft with a prior conviction for theft (count 2); the jury found true a prior strike allegation and a prior prison term allegation. (Pen. Code, 459, 666, 1170.1, subd. (c), and 667.5, subd. (b).)[1] The court dismissed the prior strike in the interest of justice and sentenced appellant to the upper term of three years on count 1 plus a consecutive term of eight months on count 2 plus a consecutive term of one year for the prison prior. The court subsequently recalculated appellants conduct credits and resentenced him to the same terms for counts 1 and 2 and the prison prior, plus a consecutive term of eight months in an unrelated case.
Court agree with respondent; the judgment will be modified to stay the term imposed on count 2 and, as modified, affirmed.