CA Unpub Decisions

Defendant Fletcher S. Smith appeals from an order denying his motion to set aside a default judgment and vacating a default judgment entered in favor of plaintiff James R. Orosco. Orosco has failed to file a responsive brief. Because of that failure, we have denied Oroscos request for oral argument and decide the case on the record and Smiths opening brief. (Cal. Rules of Court, rule 8.220(a)(2).) Court reverse.

This is an in pro per appeal from two postjudgment orders in a marital dissolution case, both entered by the lower court in June 2006. One order appealed from relates to the appellant fathers visitation rights with the couples two children and the second from a domestic violence protective order entered by the court in favor of the former wife. Court affirm both orders.

Defendant and appellant SanDisk Corporation (SanDisk) appeals the order denying its special motion to strike plaintiff and respondent STMicroelectronics, Inc.s (ST) cause of action for unfair competition. In its motion, brought under the anti SLAPP statute (Code Civ. Proc., 425.16), SanDisk contends STs unfair competition claim arises from SanDisks protected activity of prosecuting patent infringement claims against ST in federal tribunals, and that ST did not demonstrate a probability of prevailing on its unfair competition claim. The order denying SanDisks special motion to strike is affirmed.

Health Net, Inc. and its workers compensation insurer, American Home Assurance Company (collectively, Health Net), petitioned for review of an order from the Workers Compensation Appeals Board (WCAB). There being no facts or circumstances to distinguish the instant case from Costco Wholesale Corp. v. Workers Comp. Appeals Bd. (2007) 151 Cal.App.4th 148 (Costco), Court follow Costco and annul the WCABs order.
The WCABs order denying Health Nets petition for reconsideration is annulled. The matter is remanded for further proceedings consistent with the views expressed in this opinion (i.e., calculation of the permanent disability award using the permanent disability rating schedule effective January 1, 2005).

Appellant challenges the decision of the juvenile court sustaining a Welfare and Institutions Code section 602 petition against him on the grounds the trial court improperly denied his suppression motion and imposed unconstitutionally vague and overbroad probation conditions. Court's original opinion in this case concluded that the juvenile court properly denied the suppression motion and that appellants probation conditions required the addition of an element of knowledge to eliminate vagueness. The Supreme Court granted respondents and appellants petitions for review. After deciding In re Jaime P. (2006) 40 Cal.4th 128 (Jaime P.) and In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), the Supreme Court remanded this case with a direction to reconsider our decision in light of Jaime P. and Sheena K.
Applying Jaime P., we conclude the trial court erred by denying appellants motion to suppress. Appellants contention regarding his probation conditions is therefore moot.

Manual Armando Arzate appeals the judgment entered following his conviction by jury of sale of a controlled substance. (Health & Saf. Code, 11352, subd. (a).) The trial court found Arzate had a prior conviction within the meaning of the Three Strikes law (Pen. Code, 667.5, subds. (b)-(i), 1170.12) and sentenced Arzate to the upper term of five years in state prison, doubled to 10 years on account of the prior conviction.
In our original opinion, filed January 23, 2006, Court affirmed Arzates conviction and rejected his claim that imposition of the upper term based on factors not found true by a jury violated Arzates right to jury trial articulated in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]. On February 28, 2007 the United States Supreme Court, after granting Arzates petition for writ of certiorari, vacated the judgment and remanded the matter to us for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856]. Court requested and received supplemental briefing from the parties on the effect, if any, of Cunningham on Arzates sentence. We again conclude imposition of the upper term did not violate Arzates Sixth Amendment right to a jury trial and affirm the judgment.

Appellant appeals from the judgment entered following his convictions by jury on count 1 first degree murder ( 187) with personal use of a firearm ( 12022.53, subd. (b)), personal and intentional discharge of a firearm ( 12022.53, subd. (c)), and personal and intentional discharge of a firearm causing death ( 12022.53, subd. (d)), two counts of possession of a firearm by a felon (counts 2 & 3), and count 4 possession of ammunition by a felon ( 12316, subd. (b)(1)) with court findings that he suffered four prior felony convictions ( 667, subd. (d)) and four prior serious felony convictions ( 667, subd. (a)). The court sentenced appellant to prison for 170 years to life. Appellant claims various trial errors occurred. Court affirm the judgment.

Moshe Ozeri, doing business as Star Construction, appeals from a judgment of dismissal of his cross-complaint by the trial court. For convenience appellant be referred to hereafter as Ozeri. Respondent and cross defendant, Agnes Itzhaki, will be referred to as Itzhaki.
On May 2, 2005, this court filed its unpublished opinion in appeal No. B168459 entitled Moshe Ozeri, Cross-complainant and Appellant v. Agnes Itzhaki, as trustee, etc., Cross-defendant and Respondent reversing the decision of the trial court sustaining the demurrer of Itzahi to Ozeris third amended cross-complaint without leave to amend on the grounds that Ozeris claims were barred by the licensing provisions of Business and Professions Code section 7031. In reversing the dismissal this court held that Ozeri should be given a chance to amend his cross-complaint for a fourth time to allege that the subject construction work in dispute was performed under a valid partnership license, rather than the individual license which formed the basis for his original and three amended cross complaints.
On remand after this courts reversal, the trial court dismissed the cross-complaint for Ozeris failure to file an amended cross-complaint within the time permitted by law. Because the issues presented on appeal deal only with the alleged failure of Ozeri to timely file an amended cross-complaint after remand, this court dispenses with the necessity to discuss the merits of the action or this courts prior opinion except insofar as might be prudent to lend meaning to the current appeal. For the reasons hereafter given, Court affirm the decision of the trial court.

Cyrus Omead, who is pro se, appeals from the judgment entered denying his petition for a writ of mandate (Code Civ. Proc., 1094.5) to overturn the decision of the State Board of Accountancy (Board) revoking his certificate as a certified public accountant (CPA). Court affirm the judgment.

Appellants Jack Neinstein and Edward Landry, cotrustees of the Marcia Israel Living Trust and special representatives of the Estate of Marcia Israel and the Marcia and Lawrence Israel Charitable Foundation, Inc., also known as the Marcia Israel Foundation (Foundation) (appellants), appeal from an order of the trial court sustaining the demurrer of Mitchell, Silberberg & Knupp LLP and Stanley Arenberg (respondents) without leave to amend and dismissing appellants legal malpractice action in its entirety on the ground that the action was time-barred under Code of Civil Procedure section 340.6 (section 340.6).
In this appeal, Court address a single, narrow issue: whether, on the face of the complaint, appellants legal malpractice claim is barred under section 340.6. Because we find that the allegations of the complaint do not permit a definitive determination of the date that appellants suffered actual injury under section 340.6, subdivision (a)(1), Court reverse and remand for further proceedings.

Dawnisse Smith appeals the judgment entered after a jury convicted her of petty theft with a prior conviction (Pen. Code, 666). Smith admitted suffering a prior strike conviction within the meaning of section 667, subdivisions (b) through (i). She was sentenced to four years in state prison, consisting of the midterm of two years doubled for the strike prior. Smith's probation was revoked in another case, and she was sentenced to an additional eight months in state prison, for a total state prison term of four years eight months. She contends the trial court violated her constitutional right to self-representation. Court affirm.

Ernesto M. appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 upon the courts finding that he possessed a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a). He was placed home on probation and contends the juvenile court erred in denying his suppression motion and setting a maximum term of confinement. For reasons stated in the opinion, Court strike the maximum period of confinement and in all other respects affirm the order of wardship.

Omar S., a minor, appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 by reason of his having committed an assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)). The juvenile court ordered him home on probation. Appellant contends that the juvenile court deprived him of his constitutional right to present a defense and to a fair trial by excluding evidence of the minor victims propensity for violence. Court affirm.

Samuel Martinez appeals from the judgment entered following his no contest plea to second degree robbery. (Pen. Code, 211.)[1]Pursuant to his negotiated plea, he was released on his own recognizance with the understanding that he was to pick up no new offenses, report to probation within 72 hours for his interview for the probation and sentencing report. . . . And appear timely for sentencing. It was agreed that if he complied, the agreed upon disposition will be the one year in county jail. All the credit that [he had] already accumulated and [he will] be given three years of probation; however if [he] violate[s] any of those conditions the sentencing judge could sentence [him] up to five years in prison.
Thereafter, appellant failed to appear for sentencing and a bench warrant was issued. The judgment is affirmed.