CA Unpub Decisions

Daniel A.D. Gossai, appearing in propria persona as he did in the trial court, appeals from the trial courts order dismissing his complaint pursuant to Civil Code section 391.7, subdivision (c), on the ground he had previously been determined to be a vexatious litigant and had failed to seek a prefiling order for permission to file this action. Court reverse.

In this marital dissolution action, husband Michael V. Bryant appeals from post judgment orders denying his motions to reconsider (which were deemed to be motions to set aside the judgment), and ruling on his motion to clarify issues. Court affirm the orders.

Appellant Barbara Moore appeals from the trial courts grant of summary judgment in favor of respondent P. F. Changs China Bistro, Inc. (PFC) on her complaint for personal injury allegedly caused by an allergic reaction to a dish eaten at PFCs restaurant. Court conclude that Moore failed to raise a triable issue of fact concerning the presence of the suspected allergen in the dish and affirm.

A modification decision.

Michael Howard Sutton (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of first degree residential burglary (Pen. Code, 459) with admissions that he had a prior serious felony conviction that also qualified him for sentencing pursuant to the Three Strikes law ( 667, 1170.12) and that he had served separate prison terms after three prior felony convictions ( 667.5, subd. (b)). The trial court sentenced him to an aggregate term of 13 years in state prison, consisting of a doubled middle term of four years, or eight years, for the burglary and a consecutive five year term for the prior serious felony conviction. After examination of the record, counsel filed an Appellants Opening Brief in which no issues were raised.On April 6, 2007, we advised defendant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. Defendant was granted an extension to June 6, 2007, to file his response. In a hand-printed response dated May 30, 2007, filed on June 4, 2007, defendant contends that his letter, received by the trial court on August 25, 2006, should have triggered a Marsden hearing. (People v.Marsden (1970) 2 Cal.3d 118 (Marsden).) He asserts that the jurys finding on the element of his specific intent was baseless, and his trial counsel never dug into his defense that he mistakenly believed he was authorized to enter the apartment. Defendant claims that the trial courts failure to order a Marsden hearing demonstrates that he was denied his Sixth Amendment right to counsel.

Rosendo G., the father of 20 month old Tiffany G. and 10 month old Bethany G., seeks extraordinary writ relief (Welf. & Inst. Code, 366.26, subd. (l); Cal. Rules of Court, rule 8.452) from the juvenile courts order, made at the six month review hearing ( 366.21, subd. (e)), terminating family reunification services and setting a hearing pursuant to section 366.26 to consider selection and implementation of a permanent plan for his two children. Court deny the petition, finding no merit to Rosendo G.s contention there was insufficient evidence to support a finding that the Department of Children and Family Services (Department) had provided reasonable reunification services.

Petitioner Stacy F., the mother of Isaiah F., seeks writ review of the juvenile courts order terminating reunification services and setting a permanent plan hearing under Welfare and Institutions Code section 366.26. Court dismiss the petition because of the untimeliness of the rule 8.452 notice of intent.

Defendant Albert Angel Amaya petitions for a writ of mandate directing respondent superior court to grant his motion to dismiss (Pen. Code,[1] 1382) because he was not brought to trial within 60 days of his arraignment. ( 1049.5.) Defendant moved to dismiss the case after the court granted the People's motion for a trial continuance ( 1050, subd. (g)) because the deputy district attorney assigned to try the case was engaged in trial. Court hold that because the District Attorney did not demonstrate good cause for the continuance, respondent court erred when it granted the continuance motion and subsequently denied defendant's motion to dismiss. Accordingly, Court grant the petition.

After the jury was sworn, defendant pleaded no contest to making criminal threats (Pen. Code, 422) and misdemeanor vandalism (Pen. Code, 594).
On appeal, defendant contends the trial court erred in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) prior to sentencing. Under the circumstances, Court find the denial of a hearing harmless beyond a reasonable doubt, and affirm the judgment.

A jury convicted defendant Reginald Moore of two counts of robbery (Pen. Code, 211 counts one and two) and one count of evading a police officer (Veh. Code, 2800.2, subd. (a) count three). The jury found true the allegation that defendant personally used a firearm in the commission of counts one and two. ( 12022.53, subd. (b).)[1] The court found true the allegation that defendant had served a prior prison term. ( 667.5, subd. (b).)
The court sentenced defendant to 21 years in prison: on count one, the upper term of five years for the robbery conviction, plus a consecutive 10 year sentence for the firearm use enhancement; on count two, a consecutive term of one year (one third the middle term) for the robbery, plus three years and four months (one third the 10 year term) for the firearm use enhancement; and on count three, a consecutive term of eight months (one-third the middle term) for evading a police officer; and an additional one year for the prior prison term enhancement.
The sole issue on appeal is whether the court violated defendants Sixth and Fourteenth Amendment rights by imposing the upper term based on factors that had not been found true beyond a reasonable doubt by the jury. Because the court properly based imposition of the upper term on defendants record of prior convictions, Court affirm the judgment.

Dennis Diblasi entered a negotiated guilty plea to an aggravated assault charge, and admitted he personally used a deadly weapon while committing the offense. (Pen. Code,[1] 245, subd. (a)(1), 1192.7.) Pursuant to the parties' plea agreement, the court imposed a two-year sentence. ( 245, subd. (a)(1).) Diblasi then unsuccessfully moved to withdraw his plea. On appeal, Diblasi contends: (1) the trial court abused its discretion in denying his motion to withdraw the guilty plea; and (2) his counsel was ineffective because he did not investigate the victim's criminal record before advising him on the plea offer. Court conclude these contentions lack merit and affirm.

The plaintiffs and defendants in this case are all owners of small parcels of undeveloped land in an area within the City of San Diego known as East Elliott. The plaintiffs allege the defendants breached the terms of a covenant under which the property owners agreed that for a specified period of time they would negotiate collectively with any potential developer rather than attempt to pursue development opportunities separately. The plaintiffs further allege the defendants' breaches entitled them to liquidated damages under the terms of the covenant. In response to the complaint the defendants filed anti-SLAPP motions. (See Code Civ. Proc.,[1] 425.10.) The defendants argued their efforts to separately develop their parcels were protected activity within the meaning of the anti-SLAPP statute and that plaintiffs' claims failed as a matter of law. The trial court denied the defendants' motion. Court affirm the trial court's order.
The defendants' development activities are not protected by the anti SLAPP statute. Moreover, the record shows that the plaintiffs have established a prima facie case of breach of contract and that none of the defenses asserted by the defendants defeat the plaintiffs' claim as a matter of law. Hence, the defendants were not entitled to an order striking the plaintiffs' complaint.

Jesse M. appeals the judgment freeing his daughter from his custody and control under Family Code section 7822. Citing In re Sade C. (1996) 13 Cal.4th 952, he asks this court to exercise its discretion to review the record for error. In In re Sade C., the California Supreme Court held review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting his custody of a child or his status as the child's parent." (In re Sade C., supra, 13 Cal.4th at p. 959.) Court therefore deny his requests to review the record for error and to address his Anders issues. (Anders v. California (1967) 386 U.S. 738.) Jesse M.'s counsel also requests leave for him to file a supplemental brief in propria persona. The request is denied. The appeal is dismissed.

Petitioner, Jordanian-born G.A.S. (mother) and G.Y.S. (father) married in 1988 and have three children son L. (now 18), daughter S. (now 17) and son B. (now seven). The children have dual Jordanian and American citizenship. Mother and father separated on May 28, 2007, after police arrested father for domestic violence. On May 29 the court granted mother a temporary restraining order, and set the matter for hearing on June 18. On May 29 the mother also filed for dissolution.
Let a peremptory writ of mandate issue directing the superior court to vacate its order of July 11, 2007, permitting S. to travel to Jordan and directing mother to relinquish S.'s passport, and conduct further proceedings. The stay issued on July 12, 2007 is vacated. Mother is entitled to costs in the writ proceeding. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)