CA Unpub Decisions

Appellants Rosemary and Ben Parvizi[1] appeal summary judgment entered in favor of respondents Abraham Hsieh, M.D., and Scott, Hsieh & Associates (the medical group) in their medical malpractice action. They claim that there were triable issues of material fact, and they also raise procedural and evidentiary objections. Court affirm.

Appellant Senteza Pierre Hardin appeals from a final judgment disposing of all issues between the parties. Appellants counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this courts attention. No supplemental brief has been filed by appellant personally.
Upon Court's independent review of the record Court conclude there are no meritorious issues to be argued, or that require further briefing on appeal. The judgment is affirmed.

Isaiah W. appeals from the juvenile court jurisdictional and dispositional orders. The juvenile court sustained three counts alleging firearm offenses, all arising out of the same incident. Isaiahs counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellant has not filed a supplementary brief. Court find no arguable issues and affirm.

S.C. appeals from the juvenile courts jurisdictional order in proceedings under Welfare and Institutions Code section 602. The juveniles attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record. The minor was advised of her right to file a supplemental brief and has not done so. Court find no arguable issue and affirm.

Pursuant to a negotiated disposition, appellant Connie Jean Dodson pled guilty to possessing an assault weapon. (Pen. Code, 12280, subd. (b)(1).) Other charges were dismissed and the indicated sentence was the low term of 16 months in state prison. Appellant was sentenced in accordance with the negotiated disposition. The sentence was deemed served pursuant to Penal Code section 1170, subdivision (a)(3). Judgment affirmed.

The San Francisco Marriott, Permissibly Self-Insured (Marriott), timely petitions for review (Labor Code 5950; 5952)[1]challenging the Opinion and Decision After Reconsideration of the Workers Compensation Appeals Board (Board) concerning respondent, Antonio Yamat (Yamat). It is undisputed that Yamat sustained an industrial injury to his lower back, that he received temporary disability indemnity from June 28, 2004 through October 2005, and that the injury caused permanent disability. No physician had prepared a pre-2005 report indicating the existence of a permanent disability for Yamat.
The Board rated Yamats permanent disability utilizing the 1997 rating schedule, rather than the schedule that went into effect January 1, 2005. In doing so, the Board relied on section 4660, subdivision (d) to hold that the 1997 schedule applies where, as here, payments of temporary disability commenced prior to January 1, 2005. Marriott contends that the Board erred. Court agree.

The University of California, San Francisco and Octagon Risk Services, its third-party administrator for workers compensation benefits (collectively, University), timely petition for review (Lab. Code, 5950 & 5952)[1]of the Workers Compensation Appeals Boards (Board) order and opinion affirming an award to respondent, Rana Rand. It is undisputed that Rand, while employed by the University, sustained industrial injury to her upper extremities causing permanent disability and a need for further medical treatment. The workers compensation judge (WCJ) applied the 1997 schedule for rating permanent disabilities to rate Rands disability at 56 percent. The University contends that the WCJ should have used the rating schedule that went into effect on January 1, 2005. Court agree, and accordingly annul that portion of the award.

Anthony Ray Brumfield appeals after his conviction by jury of first degree murder (Pen. Code, 187(a), 189; undesignated section references are to that code), with a special circumstance finding that the murder was intentional and was committed by shooting from a vehicle at a person outside it with intent to inflict death ( 190.2, subd. (a)(21). The jury found not true enhancement allegations that appellant had used and discharged a firearm in the commission of the offense ( 12022.53, subds. (b)-(d)), and that the crime was committed for the benefit of a street gang with intent to promote gang activity ( 186.22, subd. (b)(1)). Appellant was sentenced to life without possibility of parole, and was ordered to pay victim restitution of $25,696.66 ( 1202.4, subd. (f)), as well as a $10,000 restitution fine (id., subd. (b)), and a $10,000 parole revocation fine ( 1202.45).

Appellant raises the following contentions: (1) There was insufficient evidence to sustain the conviction; (2) the court reversibly erred by instructing the jury on aider-abetter principles; (3) the court reversibly erred in failing to instruct the jury on (a) second degree murder or manslaughter as lesser included offenses, (b) malice as an element of first-degree murder by shooting from a vehicle, and (c) intent to kill as a prerequisite to the special circumstance if appellant were found to have aided and abetted the murder; (4) the court erroneously denied appellants motion for new trial; and (5) the restitution order and the parole revocation fine must be stricken. Respondent agrees with the last contention, concerning the parole revocation fine.
Court conclude that both the parole revocation fine and the restitution order must be reversed, subject to further proceedings concerning restitution. In all other respects, Court affirm the judgment.

Jos Y. Lauchengco appeals from a temporary restraining order (TRO) and a permanent restraining order issued during the course of a juvenile dependency matter. Court modify both orders and affirm them as modified.

Appellant John Fiduccia appeals from a judgment of dismissal after the demurrer of respondent Princess Cruise Lines, Ltd. (Princess) was sustained without leave to amend. He also appeals from a judgment of dismissal entered after the trial court granted the motion to quash service of summons brought by respondent Cruise Solutions Belize, Ltd., (Cruise Solutions). Appellant, a passenger on a Princess cruise ship, sued both entities for injuries suffered during a shore excursion while touring a park in Belize City, Belize, claiming that each entity was negligent in failing to warn him of the dangerous condition of a boardwalk in the park. We conclude that as appellant failed to allege facts showing actual or constructive knowledge of any unreasonable risk or danger, no duty to warn arose, and no cause of action for negligence was stated against Princess.
Court also conclude that appellant failed to meet his initial burden to make a prima facie showing that the exercise of jurisdiction over Cruise Solutions was justified. Appellant relied upon forum selection clauses in two contracts appellants cruise contract and Cruise Solutionss contract with Princess but he did not establish that Cruise Solutions consented to the former contract, or that he was an intended beneficiary of the latter. Court reject appellants contention that he should have been permitted to obtain discovery from Cruise Solutions, as he has not shown the trial court abused its discretion in denying his request for discovery. Court therefore affirm both judgments.

After a bench trial, the court ordered a partition by sale of a residence owned by the trust of Mabel Wright (Mabel) and the trust of her deceased husband, George Wright (George). The court rejected Mabels attempt to enforce a life estate in the residence under an oral agreement with George. On appeal from the judgment, Mabel challenges the sufficiency of the evidence, the trial courts rulings on statutes of limitations defenses to Mabels claims, and an order bifurcating a legal malpractice action against the lawyer involved in drafting the trusts for George and Mabel. Court affirm the judgment.

Appellant and the codefendant, Alton Lionell Sterling, committed a series of armed robberies at small, family-operated stores. Sterling is not a party to the appeal. During one of the incidents, appellant and Sterling both shot at Jose Chitay, who died from a bullet fired by Sterling. Appellant and Sterling both made confessions to a police detective. Appellant admitted that he committed about nine robberies, and fired the first shot at Chitay. He turned 14 years old, two months before the crimes. Sterling was 19 years old when the crimes were committed.

Appellant contends: (1) The case must be remanded for resentencing under section 731, because the trial court erroneously believed that it lacked discretion to impose a lesser sentence, based on the facts and circumstances of the case, that would make appellant eligible for the California Youth Authority (CYA). (2) He was deprived of due process of law because certain provisions of section 602, subdivision (b) are vague and uncertain. (3) Imposition of a sentence of 115 years to life on a 14 year old offender constitutes cruel and unusual punishment.
Based on the facts of the crimes and the applicable law, Court find no error, and affirm.

Defendant Martin Garcia Gonzalez appeals from a judgment of conviction entered after a jury found him guilty of corporal injury to a spouse (Pen. Code, 273.5, subd. (a)). Defendant admitted serving two prior prison terms (id., 667.5, subd. (b)). The trial court sentenced defendant to the upper term of five years, plus two years for the prior prison terms.
On appeal, defendant claims reversal is required due to the erroneous admission of propensity evidence under Evidence Code section 1109 and instruction on the use of such evidence pursuant to CALJIC No. 2.50.1. He also challenges the enhancement of his sentence for prior prison terms and the imposition of the upper term sentence. Court find no merit to his claims and affirm the judgment.

Michael Cohn appeals from an order dismissing his gender discrimination action based on forum non conveniens. Court find the trial court applied the wrong standard in granting the motion and remand the cause for reconsideration.