CA Unpub Decisions

Defendant Carlos Licea Aguilar was convicted by plea of one felony count of possession of a billy club (Pen. Code, 12020, subd. (a)(1))[1] and one misdemeanor count of possession of a switchblade knife ( 653k). Pursuant to the plea agreement, the court dismissed a gang enhancement ( 186.22, subd. (b)(1)(A)) attached to the possession of a billy club count, suspended imposition of sentence, and placed defendant on probation for three years, on the condition that he serve 45 days in the county jail. Other conditions of his probation included submitting to chemical testing as directed by the probation department, completion of a substance abuse program, and gang registration pursuant to sections 186.30 and 186.32.
On appeal, defendant contends there was insufficient evidence to support imposition of the gang registration requirement and argues the court abused its discretion when it required him to submit to chemical testing and complete a substance abuse program as conditions of his probation. Court agree with defendants first contention and remand for further hearing on the question of gang relatedness.

Defendant Federico Avalos was charged with continuous sexual abuse of a child (Pen. Code 288.5),[1] committed by use of force, fear and bodily injury within the meaning of section 1203.066, subdivision (a)(1), and committing a lewd act upon a child ( 288, subd. (a)) with a further allegation of multiple victims within the meaning of section 1203.066, subdivision (a)(7).
The judgment is affirmed.

Petitioner Shannan B. challenges the order of the juvenile court setting a Welfare and Institutions Code section 366.26 hearing to consider a permanent plan for 10 year old Cody and eight year old Phoenix and the possible termination of her parental rights. She contends that the juvenile court erred "when it determined that mother was provided or offered reasonable reunification services." Court grant her petition for a writ of mandate.

Plaintiff Sonja Luckett appeals from a judgment following a jury verdict in favor of defendant John Agelopoulos in her personal injury action against him. Luckett contends the (1) trial court improperly admitted testimony of a biomechanical expert. She also contends the trial court erroneously denied her motion for new trial because (2) the closing argument by Agelopouloss counsel constituted prejudicial misconduct, (3) her affidavits established prejudicial juror misconduct, and (4) there was insufficient evidence in support of the verdict. Moreover, she argues that (5) the errors below, though independently harmless, are cumulatively prejudicial and warrant reversal. Court affirm the judgment.

Appellant was convicted in January 2005 of five counts of violating Penal Code section 288, subdivision (a),[1]by committing lewd and lascivious acts on a child under the age of 14, specifically his nine-year old daughter, starting in April 1991. Appellant contends that the statute of limitations bars his conviction, but the trial court held that the applicable statute had been extended by the enactment of former section 803, subdivision (g) (section 803(g)). Appellant contends that statute is an unconstitutional revival statute. Consistent with the holdings of several of our sister courts, Court disagree and hence affirm appellants conviction.

Plaintiff and appellant Darren Ferguson, a tenant in defendant and respondent Jonny Posadass rooming house, appeals the courts denial of his request to enter a default judgment against Posadas. On appeal, Ferguson contends the trial court erred because it required him to show evidence of liability, rather than simply damages, at the prove up hearing. Court conclude that because Ferguson failed to allege a basis for liability, the trial court properly denied his request for a default judgment; thus, Court affirm the judgment.

On or about December 9, 2005, appellant Eleanor Lindquist filed an application for spousal support and health insurance coverage in the marital dissolution action she had previously initiated against her then husband, respondent Jeffrey Lindquist. Unfortunately for Eleanor, between the time she initially petitioned for dissolution and when she subsequently requested court-ordered spousal supporta period of nearly 14 monthsJeffrey had filed for bankruptcy and become unemployed.

In light of a bankruptcy court order providing that the dissolution action was stayed for all purposes except for entry of the dissolution itself, the trial court denied Eleanors application for support. After the Ninth Circuit Court of Appeals subsequently vacated the stay order and mandated that Eleanor be returned to the position she would have held had the dissolution action not been improperly stayed, Eleanor moved the trial court for spousal support retroactive to the date of the improper stay order and for sanctions, which the court denied. Court conclude that the trial court did not abuse its discretion in so ruling, and thus affirm the order denying Eleanors application for retroactive spousal support and her request for sanctions.

Nicole C. (mother) appeals from an order terminating her parental rights to her twin daughters Destiny and Jasmine C. (Welf. & Inst. Code, 366.26.)[1] She contends: (1) the eligibility of the childrens guardians as prospective adoptive parents had not been adequately assessed because respondent San Francisco Department of Human Services (DHS) did not comply with the Interstate Compact on the Placement of Children (ICPC) before the girls moved from California to Texas with their guardians and prospective adoptive parents; (2) the evidence was insufficient to prove the children were adoptable; (3) termination of parental rights was detrimental to the children because it would interfere with sibling relationships; and (4) the trial court abused its discretion in denying mothers section 388 motion seeking additional reunification services and erroneously precluded mother from eliciting evidence of the childrens best interests for purposes of that motion. Court affirm.

Here we decide that a pretrial motion seeking to reduce the amount of a mechanics lien that turns upon contested facts must be brought as a motion for summary judgment or summary adjudication under Code of Civil Procedure section 437c rather than under Civil Code sections 3123 and 3140 that govern the amount and priorities of such liens. Court issue a peremptory writ of mandate that directs the trial court to vacate its November 6, 2006, order reducing the amount of petitioners mechanics lien and requires it to enter a new order denying the motion to reduce the lien.

In this dispute involving two commercial properties, plaintiffs challenge (1) a summary judgment in favor of three defendants (Kaveh Lahijani, Micha Mottale, and Bahman Mashian) based on orders granting defendants two motions for summary adjudication of issues, which together disposed of all eight causes of action of the complaint, (2) a post-judgment order denying plaintiffs motions for reconsideration, (3) an order dismissing Kaveh Lahijanis cross-complaint against plaintiffs without prejudice rather than with prejudice, and (4) an order awarding defendants Kaveh Lahijani and Mashian approximately $184,000 in attorney fees. In a cross appeal, Mottale and four Doe defendants appeal from an order denying their motion for attorney fees and the Doe defendants appeal from an order denying their motion for sanctions.
Court reverse the award of attorney fees to defendants because there is no legal basis for such award. Court affirm the summary judgment because it was based on plaintiffs unequivocal judicial admissions and other undisputed evidence which defeated their claims as a matter of law. Court affirm the other orders from which plaintiffs appeal because plaintiffs fail to establish any error or prejudice. Finally, Court affirm the orders denying defendants motions for sanctions and attorney fees because defendants fail to establish any error or abuse of discretion.

Miriam Pardo and her husband Lou Pardo appeal from the judgments entered after the trial court granted summary judgment in favor of L.A. Fitness International, LLC and Trillium Sports Medicine, Trillium Sports Medicine & Associates, Inc., Michael Spagnoli and Michael Spagnoli doing business as Chiropractic Clinic (collectively Trillium) in this action for premises liability and loss of consortium. Court affirm.

Plaintiff Ernest Burwell appeals from a grant of summary judgment on Burwells complaint for wrongful termination in violation of public policy, violation of Labor Code section 1102.5, and wrongful discipline in violation of public policy. The trial court granted summary judgment because Burwell did not exhaust administrative remedies before filing his complaint. Burwell has failed to provide a record on appeal adequate to review the lower courts rulings, and has not shown that the trial court erroneously struck a declaration Burwell untimely filed with his new trial motion. Thus Burwell provides no evidence showing that a triable issue of fact existed as to whether he had no available internal administrative remedy, whether pursuit of such administrative remedy would be inadequate, futile, or cause irreparable injury, and whether he satisfied the internal grievance procedures available to him. Burwell also fails to show that his section 1102.5 claim was exempt from the requirement that he exhaust administrative remedies before proceeding to suit. Court affirm the judgment for defendants.

Defendant and appellant Wachovia obtained a trial court ruling that the putative class and class action causes of action brought by plaintiffs and respondents Jason Clark and Robert A. Pool were to be resolved in arbitration. Then, Wachovia obtained a ruling from the arbitrators that these causes of action were not eligible for arbitration. The trial court, on its own motion, reconsidered its first ruling. Thereafter, the trial court issued an order holding that the putative class and class causes of action were to be heard in the trial court. Court affirm the trial courts order.

A modification decision.