CA Unpub Decisions

Following a court trial, judgment was entered granting dissolution of the marriage between Marshall Bernie (Husband) and Colleen Bernie (Wife). Along with dissolving the marriage, the trial court determined that the family residence at 64896 Boros Court, Desert Hot Springs, California, was separate, nonmarital property belonging to Husband. In support of its determination, the court concluded that Husband did not make a premarital, oral agreement to give Wife the family residence in contemplation of marriage. Wife appeals, claiming the trial court erred in: (1) not allowing her cross-examination on the grounds alleged for the dissolution of marriage; (2) not admitting certain evidence regarding a premarital promise between the parties; and (3) awarding the family residence to Husband without sufficient evidence. Having found no error, Court affirm the entirety of the trial courts rulings.

Plaintiffs[1]contend the trial court abused its discretion in denying their motion to disqualify defendants counsel because (1) defendants counsel improperly communicated with adverse parties without consent of plaintiffs counsel; (2) the trial court erroneously based its decision on the ground that plaintiffs had failed to show prejudice; and (3) the trial court considered facts and evidence that were not properly before the court. We find no abuse of discretion, and we affirm. In addition, because the face of the record suggests misconduct on the part of counsel, Court refer the matter to the State Bar of California for further investigation and, if appropriate, imposition of sanctions.

This is the second appeal by defendant and appellant Roberto Hernandez Guillen (hereafter defendant). In his first appeal, we agreed with his claim that the trial court erred when it failed to instruct the jury on misdemeanor false imprisonment as a lesser included offense to the charged crime of felony false imprisonment alleged in count 6. Therefore, we reversed that conviction[1]and remanded to the trial court with directions either to retry defendant on the felony within 60 days or to reduce the conviction to a misdemeanor and resentence defendant accordingly. The latter occurred. In resentencing defendant, the trial court reimposed the original sentences on the convictions we had affirmed on appeal, and imposed a consecutive sentence of 180 days to be served at any penal institution on the misdemeanor false imprisonment conviction (count 6). As a result of the consecutive sentence, the trial court effectively increased defendants aggregate sentence from eight years, four months to eight years, 10 months.
Defendant challenges his new sentence on two grounds. First, he contends that the sentence violates the prohibition against imposing a longer sentence on a defendant who has successfully appealed his conviction. Second, defendant contends that the upper term sentence the trial court imposed on count 5, defendants conviction for felony child endangerment, violates defendants rights under the Sixth and Fourteenth Amendments to the United States Constitution to have all facts decided by a jury as set out in Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856].
Court agree with defendants first claim, and therefore stay execution of the sentence imposed on count 6. Otherwise, Court affirm.

Petitioner Ernest C. (father) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452 (formerly rule 38.1(a)), challenging the juvenile courts order terminating reunification services as to his son A.C. (the child) and setting a Welfare and Institutions Code section 366.26 hearing. Father argues that he was not provided with reasonable reunification services, and that he made substantive progress in his case plan. Court deny fathers writ petition.

After admitting to residential burglary (Pen. Code, 459), appellant Sammy H., age 16 at the time of the offense, was committed to the Tulare County Probation Youth Facility, a local boot camp, for 365 days. Five months prior, appellant admitted to arson (Pen. Code, 451, subd. (d)) and was placed on the Deferred Entry of Judgment Program, subject to standard probationary terms. Appellant now claims that the juvenile court abused its discretion by placing him at a boot camp without finding that less restrictive alternatives would be ineffective. For the following reasons, Court affirm.

Avalon Rehabilitation and one of its principals, Craig Carlson, were ordered to pay Medical Nutritionals $75,000 for the breach of two contracts, which the trial court determined comprised one transaction. On appeal, Court conclude there are in fact three overlapping layers of written agreements in this case, but together they fall like a house of cards. Standing alone the agreements are each illusory. In combination, the business deal is illegal. Accordingly, the judgment is reversed.

Plaintiff Christopher Hill sued defendant Pedro Pablo Arreola and several other individuals seeking damages for injuries he suffered during an altercation. As a sanction for refusing to comply with discovery orders, the trial court struck defendants answer and entered his default. After a prove-up hearing, the court entered judgment against defendant and other named defendants, awarding plaintiff compensatory damages of $650,000, punitive damages of $50,000, and costs of suit. Defendant appeals contending: (1) The judgment must be reversed because plaintiff failed to mail notice of the request for entry of default; (2) the compensatory damage award is void because plaintiff failed to present adequate proof that he served a statement of damages; and (3) the punitive damage award is erroneous. Court conclude the first two contentions lack merit, but reverse the punitive damage award.

A jury convicted Javier Jose Carranza of burglary. Carranza entered an apartment through a window, and he stole money and jewelry from one of the bedrooms. On appeal, he contends the trial court erred by failing to give a unanimity instruction. Specifically, he maintains that because the trial court instructed the jury that the burglary could have been committed by one of two distinct entries (entry into the apartment or entry into the bedroom), the trial court was required to instruct the jury it must unanimously agree on which entry constituted the burglary. Court find his contention lacks merit and affirm the judgment.

Avery Heath Looper appeals from the judgment sending him to prison for six years, following his guilty plea to transportation of methamphetamine and possession for sale of more than one ounce of that drug. Looper also admitted he had a prior strike conviction. He contends that the court erred when it denied his suppression motion. Specifically, he argues the authorities unjustifiably impounded his truck and inventoried its contents, which included a pound of methamphetamine. Court affirm.

Bert E. Shook (Bert) filed an application pursuant to Probate Code section 21320[1]to determine whether the probate petition he planned to file would violate the no contest clause in the trust executed by his mother, the decedent, Lottie M. Shook (Lottie). Relying on section 21305, subdivision (a), Bert argued his proposed petition challenging a trust amendment, executed a few months before Lotties death, would not constitute a contest. The trial court determined section 21305, subdivision (a), was inapplicable and, therefore, under the common law the proposed petition would invoke the no contest clause. Court conclude this ruling was erroneous as a matter of law and reverse the order.

Orlando Michael Tran appeals from a judgment after a jury convicted him of street terrorism and numerous firearm related offenses, including two counts of assault with a firearm. Tran argues the trial court erroneously failed to instruct the jury sua sponte on brandishing a firearm because it is a lesser included offense of assault with a firearm. Court disagree and affirm the judgment.

Plaintiffs (Mother), Richard C. Soria, Jr. (Richard Jr.), Barbara Soria (Barbara), Eleanor I. Soria (Eleanor), and Renee R. Soria (Renee) (collectively Plaintiffs) appeal from a judgment entered after the trial court granted a nonstatutory motion for judgment on the pleadings at the outset of trial. The trial court denied Plaintiffs request for a brief continuance to prepare written opposition and granted the motion on the same day it was filed, on the ground that each of Plaintiffs causes of action was time barred.
As Court are reversing, we cannot say the appeal is frivolous, so Court deny defendants motion for sanctions. Court agree with the defendants that the appellants briefs contain serious violations of the California Rules of Court. Court decline to impose sanctions this time, but warn Plaintiffs counsel that Court impose sanctions against him in the future for filing briefs with such rules violations. Court grant Plaintiffs motion to augment the record, deny Plaintiffs motion to strike portions of the clerks transcript, and deny Plaintiffs motion for award of costs and/or sanctions.

Defendant Eskanos & Adler, P.C. appeals from the denial of its motion to strike the complaint of plaintiffs Hayley Hanssler and Scott W. Hanssler under Code of Civil Procedure section 425.16 (anti-SLAPP motion; all further references are to this code unless otherwise stated). It contends the court erred when it concluded resolution of the underlying lawsuit mooted the motion. Court agree. In addition, because the issue of whether defendant would be entitled to recover attorney fees should it prevail on the motion was not before the court, it should not have been a basis for denying the motion. Court reverse the order.

The Lakes Project envisions the construction of two noncontiguous reservoirs, North Lake and South Lake. The 44 acre North Lake is designed to offer a stable source of water, reduce the hazards of high underground water levels, provide aesthetically pleasing recreational opportunities, and revitalize a core community. But creating it would require the demolition of 437 dwelling units and 30 businesses, and the dividing of a well established neighborhood. The proposed South Lake would be much smaller, and less controversial: four houses would be removed to create five acres of wetlands.
Plaintiffs opening briefs (they never filed reply briefs) contain scant analysis and virtually no citation to the administrative record. They abdicate their duty to fairly summarize the facts and argue the law. Because plaintiffs have not met their burden of showing that the agencies ignored CEQA requirements or proceeded without substantial evidence to inform their decisions, Court affirm.