CA Unpub Decisions

This appeal is from the trial courts denial of an application for preliminary injunction sought by Harbor Furniture Manufacturing, Inc., a closely held family corporation, being operated under a subchapter S election for income tax purposes, in the face of a threat to have the corporations tax status changed to a C corporation by two family members constituting the majority shareholders but who occupy minority voting status in the corporation. Plaintiff and appellant, Harbor Furniture Manufacturing, Inc. will be referred to herein as Harbor. Defendants and respondents, Candi Tuttleton and Ann Stuparich are the two family members constituting the majority shareholders who, combined, own a slight majority of the shares of Harbor and be referred to hereafter as majority shareholders unless context dictates otherwise. Occasionally the family members be referred to herein by their first names, not out of disrespect, but for convenience in describing the longstanding family friction.
Court affirm the decision of the trial court.

Arthur Kenneth Osbourn was sentenced to 34 years state prison after pleading guilty to two counts of attempted murder (counts 1 & 2; Pen. Code, 664/187, subd. (a)) and one count of making terrorist threats (count 3; 422), and admitting that he personally used and intentionally discharged a firearm in the commission of the offenses ( 12022.5, subd. (a)(1); 12022.53, subd. (c)). He appeals, contending that the trial court abused its discretion in imposing a nine-year consecutive sentence on count 2 for attempted murder and intentional discharge of a firearm. Court affirm.

David A. Battle appeals the judgment following his no contest plea to violations of Vehicle Code section 10851, subdivision (a), unlawful driving or taking of a vehicle (count 1); Penal Code section 496d, subdivision (a), receiving a stolen motor vehicle (count 2); Penal Code section 496, subdivision (a), receiving stolen property (counts 3, 7); Penal Code section 12021, subdivision (a)(1), felon in possession of a firearm (count 4); Penal Code section 12280, subdivision (b), possession of an assault weapon (count 5); Penal Code section 12316, subdivision (b)(1), possession of ammunition (count 6); and Penal Code section 538d, subdivision (a), impersonating a police officer (counts 8, 9, 10). Pursuant to Penal Code section 666.5, it was alleged that appellant had prior convictions for violating Vehicle Code section 10851. The service of five prior prison terms was alleged pursuant to Penal Code section 667.5, subdivision (b).
Court have reviewed the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra,25 Cal.3d at p. 441.) The judgment is affirmed.

Joe M., appearing in propria persona, seeks an extraordinary writ to vacate the order of the juvenile court setting a hearing pursuant to Welfare and Institutions Code section 366.26. Court summarily deny the petition because petitioner has completely failed to comply with the procedural requirements of rule 8.452 of the California Rules of Court.
The petition for extraordinary writ is summarily denied. Given the need to proceed promptly with the section 366.26 hearing, set for May 21, 2007, our decision is final as to this court immediately. (Rule 8.264(b)(3)).

A jury convicted defendant Lamarr Brion Craig of dissuading a witness (Pen. Code, 136.1, subd. (c)(1) -- count one)[1], making criminal threats ( 422 -- count two), violating a court order ( 166, subd. (c)(1) -- counts three, four), resisting arrest ( 148, subd. (a) -- count five), and unlawfully possessing a smoking device (Health & Saf. Code, 11364 -- count six). In a trial by court, the court found defendant had a prior serious felony strike conviction ( 667, subds. (a)-(i), 1170.12, subds. (a)-(d)). Sentenced to state prison for 11 years, defendant contends (1) that, for various reasons, the trial court erred by admitting other crimes evidence;[2](2) the trial courts failure to instruct the jury, sua sponte, with CALJIC No. 2.50.2, defining preponderance of the evidence, was federal and state constitutional error; (3) the cumulative effect of the errors was prejudicial; and (4) the trial court erred in imposing various fines and fees. While Court reject defendants first three contentions, Court agree there was some error regarding imposition of the fees.

Appellant A.H., the mother of J.H. (the minor), appeals from an order of the juvenile court placing the minor with the M. family as nonrelative extended family members (NREFM). (Welf. & Inst. Code, 388, 362.7.) Appellant contends there was insufficient evidence to find a change in circumstances sufficient to qualify the M. family as an NREFM, or that placement with the M.s was in the best interest of the minor. For the reasons set forth below, Court affirm the juvenile courts order.

A.S. (appellant), the mother of two children at issue in this case (the minors), appeals from the juvenile courts orders terminating her parental rights. (Welf. & Inst. Code, 366.26, 395; further section references are to the Welfare and Institutions Code.) She claims the evidence does not support the juvenile courts finding that the minors were adoptable. Court disagree and affirm the orders.

Joseph and Nancy Weiss appeal from a judgment entered after a bench trial in which the court found in favor of defendant Interinsurance Exchange of the Auto Club (Exchange) on the Weisses' breach of contract and declaratory relief claims. The Weisses sued the Exchange under three separate homeowners insurance policies covering three different residences, seeking $1,636,200 in coverage for the loss of a family collection of books, prints, lithographs and other artifacts after the collection was destroyed in a fire. The Weisses had loaned portions of their personal collection to an organization known as the Friends of Chabad Lubavitch (Chabad). A wildfire, known as the Cedar fire, destroyed most of Chabad's Scripps Ranch campus, where the Weisses' collection was located.
Court conclude that the trial court correctly determined that the 10 percent limitation applies to the property covered under the Weisses' homeowners policy on the first home, the Avenida Alteras residence, and that the Exchange has already paid that amount in full. Court further conclude that the trial court incorrectly determined that the phrase "usually situated" is not ambiguous with regard to the personal property covered under the policies on the second and third homes, the Calle Portone and Calle Amanacer residences. Court therefore affirm the trial court's ruling that the Exchange is required to pay the Weisses only 10 percent of the Avenida Alteras policy limit for unscheduled personal property, and reverse the trial court's ruling that that the Exchange must pay the Weisses only 10 percent of the limits for such property under the Calle Portone and Calle Amanacer policies.

Ramon Plazola Bartoleno appeals a judgment following his jury conviction of multiple counts of forcible rape and other offenses, including robbery. On appeal, he contends the trial court erred by: (1) not instructing with CALJIC No. 10.65 on the mistake-of-fact defense to charges of forcible rape, sodomy, and oral copulation; and (2) sentencing him to a consecutive full 10 year Penal Code section 12022.53 enhancement in addition to the consecutive one year term imposed for his subordinate robbery conviction.
The judgment is modified to reflect imposition of a consecutive term of three years four months for the Penal Code section 12022.53, subdivision (b) enhancement related to the robbery conviction (count 6), resulting in an aggregate determinate term of 45 years in addition to the indeterminate term imposed by the trial court.

In this action, plaintiff James P. Panther seeks legal malpractice damages from his former attorney Steven A. Micheli, for alleged lost opportunities stemming from the outcome of certain underlying actions concerning a real estate development project which never came to fruition. The trial court granted Micheli's motion for summary judgment, which was based on arguments that plaintiff was unable to demonstrate, as to the legal representation provided by Micheli, any triable issues of fact concerning any causation of any damages. (Code Civ. Proc., 437c.) Plaintiff appeals.
We review the judgment and consider the arguments concerning the causation and damages issues on a de novo basis. (Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1056-1057 (Orrick).) The trial court correctly determined Micheli was entitled to judgment as a matter of law, in the absence of triable issues of material fact, and Court find no abuse of discretion in the evidentiary rulings. Court affirm the summary judgment.

A jury convicted Jess Paul Knight of possession for sale of cocaine (Health & Saf. Code, 11351), and simple possession of cocaine (Health & Saf. Code, 11350, subd. (a)). Knight waived a jury trial and the court found true allegations that he suffered a prior conviction for possession of a controlled substance (Health & Saf. Code, 11351; Pen. Code, 1203.07, subd. (a)(11)) and allegations he suffered two prior convictions within the meaning of Penal Code section 1203, subdivision (e)(4). The court denied probation and sentenced Knight to a seven-year prison term, consisting of two 3-year mid terms on the possession counts, and one year (one-third of two 3-year, concurrent mid-term sentences) for the prior convictions. On appeal, Knight contends the court abused its discretion by (1) admitting evidence of assertedly prior similar acts under Evidence Code section 1101, subdivision (b) and (2) permitting the prosecution expert witness to render an opinion on his guilt. He further contends his conviction for possession of cocaine under Health and Safety Code section 11350, subdivision (a) must be reversed because it is a lesser included offense of possession of cocaine for sale. The People concede the latter point and we agree it is appropriate to modify the judgment to reverse Knight's conviction for possession of cocaine. As so modified, Court affirm the judgment.

A modification decision.

James W. Keenan appeals a postjudgment order denying his motion to vacate the judgment entered against him after the trial court granted the petition of law firm Webb & Carey, APC (Webb) to confirm an arbitration award in its favor. On appeal, Keenan contends the trial court erred by denying his motion to vacate, arguing: (1) the judgment was void because it confirmed an arbitration award that was void for lack of personal and subject matter jurisdiction and noncompliance with the parties' arbitration agreement; and (2) he was not required to challenge the arbitration award within 100 days pursuant to Code of Civil Procedure section 1288 et seq. Court conclude this appeal does not raise issues different from those raised in Keenan's prior appeal of the judgment in Case No. D047948. Although the appeal challenges an order denying a motion to vacate the judgment, the motion was not, in substance, a motion to vacate a judgment as void for lack of fundamental jurisdiction of the trial court (rather than of the arbitrator). Court therefore dismiss this appeal.

Gina P. and Kevin S., appeal a judgment terminating their parental rights to their son, Kevin S., Jr., and orders denying their Welfare and Institutions Code section 388 petitions. They contend the court abused its discretion by denying their petitions without hearings. They also assert the court erred by finding the section 366.26, subdivision (c)(1)(A) exception to adoption did not apply. Gina, joined by Kevin, additionally contends the court denied her due process by preventing her from cross examining the social worker about her visitation and erred by ruling the doctrine of equitable estoppel did not apply. Court affirm the judgment and orders.