CA Unpub Decisions

In 2001, the plaintiffs, as buyers, and the defendants, as sellers, entered into an agreement for the sale of real property in Sacramento. No deed was ever provided and, eventually, the defendants asked the plaintiffs to move out so they could sell the property to someone else. The plaintiffs sued, claiming the defendants breached the contract by failing to finish the paperwork on the sale. The defendants countered that the agreement was just a lease with an option to buy the property and that the plaintiffs had failed to exercise the option. The trial court found in favor of the plaintiffs, and the defendants appeal. On appeal, the defendants contend the evidence and law do not support the judgment. Court affirm.

Defendant was convicted by a jury of three counts of assault with a firearm (Pen. Code, 245, subd. (a)(2)) and one count of making criminal threats (Pen. Code, 422). He was also found to have personally used a firearm in each of the assaults (Pen. Code, 12022.5, subd. (a)(1)). Defendant was sentenced to state prison for an aggregate, unstayed term of nine years.
He appeals, claiming his constitutional and statutory rights were violated when, during cross-examination and closing argument, the prosecutor alluded to defendants failure to explain his side of the case prior to trial. Defendant also challenges a number of instructions given by the trial court and asserts cumulative error. Court affirm the judgment.

The California Horse Racing Board (CHRB) and the State Compensation Insurance Fund (the Fund) (collectively petitioners) have petitioned for a writ of review from an order of the Workers Compensation Appeals Board (WCAB) upholding a decision by which real party in interest Martin Snezek was awarded work related disability benefits for a heart attack. Petitioners contend that the WCAB erred in applying the heart trouble presumption set forth in Labor Code section 3212 to Snezek, who worked as a special investigator for the CHRB. Having granted a writ of review, Court now vacate the WCABs decision.

After defendant Donald Lee Anderson stole a laptop computer while visiting a hospital, and was later found to be in possession of items stolen from other locations, he pled guilty to one count of felony theft and four counts of felonious petty theft. (Case No. 05 1053.) The plea agreement permitted defendant to be out of custody until the sentencing hearing, when he would receive a sentence of three years in state prison. If, however, he failed to appear at the sentencing hearing, he would be sentenced to a maximum term of five years and eight months. (People v. Cruz (1988) 44 Cal.3d 1247.) Defendant waived his right to have a jury determine sentencing factors. (Blakely v. Washington(2004) 542 U.S. 296 [159 L.Ed.2d 403].) The judgment is affirmed.

The Workers Compensation Appeals Board (Board) denied the motion for reconsideration of the Sacramento County Office of Education (employer)[1]and adopted the decision of its hearing officer. This decision concluded that Kim Burnett (employee) had satisfied the condition in Labor Code section 4062 of obtaining a second medical opinion in favor of requested spinal surgery, triggering the employers obligation to authorize the surgery. The employer sought a writ of review. ( 5950.) Court issued the writ, and after plenary review Court annul the decision for want of substantial evidence to support its factual premise. ( 5952, subd. (d).)

Appellant, the mother of the minors, appeals from the juvenile courts order terminating her parental rights. (Welf. & Inst. Code, 366.26, 395.) Appellant claims there was insufficient evidence to support the juvenile courts finding that the minors were adoptable. She also maintains the matters must be remanded for the juvenile court to make a finding
whether the Indian Child Welfare Act (ICWA) applies. (25 U.S.C. 1901 et seq.) Court remand the matter for compliance with the ICWA and, otherwise, affirm.

In April 2002, Barry S. Jameson filed a complaint against Dr. Tadesse Desta, alleging numerous claims stemming from Dr. Desta's allegedly negligent medical treatment of Jameson while Jameson was incarcerated at the Richard J. Donovan Correctional Facility. In September 2005, the trial court granted Dr. Desta's motion to dismiss the case for lack of prosecution. The trial court granted the motion to dismiss on the ground that Jameson "was not diligent in effecting service on Dr. Desta." Code of Civil Procedure section 583.420, subdivision (a)[1]grants a trial court discretion to dismiss an action if service has not been effected within two years of the filing of the complaint.On October 11, the court entered judgment in favor of Dr. Desta.
On appeal, Jameson contends that Dr. Desta's signing of an April 19, 2002 notice and acknowledgement of service establishes that Desta was timely served by mail, pursuant to section 415.30. Jameson argues that the trial court was thus not authorized to dismiss the action pursuant to section 583.420, subdivision (a). We agree that Jameson served Dr. Desta pursuant to section 415.30 no later than June 26, 2002. Accordingly, the trial court erred in dismissing the action for lack of diligent service.Court reverse and remand.

Richard Shirk appeals from a summary judgment granted in favor of Park Row Community Association (Park Row) on Park Row's complaint for injunctive and declaratory relief. Park Row sought to enjoin Shirk from constructing certain improvements to his condominium unit without approval by Park Row's Board of Directors and obtain a judicial declaration of the parties' rights under Park Row's Declaration of Covenants, Conditions and Restrictions (CC&Rs). The court entered judgment in part permanently enjoining Shirk from commencing, continuing or completing any construction within or on the exterior of his unit, ordering him to permit Park Row to inspect any construction already completed, and restraining him from making unapproved modifications and/or alterations to his unit without Park Row's express written consent. On appeal, Shirk contends summary judgment was improper because (1) Park Row did not meet its burden of proving it exercised its power in a fair and nondiscriminatory manner; (2) a "nonwaiver" provision in the CC&Rs is void as against public policy, unconscionable and unenforceable; (3) Park Row had no authority to demand inspections under the CC&Rs; (4) he raised triable issues of fact as to whether there was any justiciable case or controversy, barring summary judgment on the declaratory relief cause of action; and (5) Park Row was not entitled to file suit because it did not comply with Civil Code section 1354. Shirk further argues the judgment violates his rights under the CC&Rs and section 1360.
Court reject all but the latter of Shirk's contentions. As for the latter, we agree the trial court's injunction sweeps too broadly because it arguably bars Shirks from "replac[ing] . . . appliances and fixtures which require no structural changes in the building" without seeking and obtaining approval by Park Row's Board of Directors. Court therefore affirm the judgment in part and remand the matter to the trial court to fashion a properly limited injunction.

This case arises from a dispute concerning use of the common area at the Casa Del Rey condominium building. Terri Haley and William Haley (together Haley when appropriate) appeal a judgment entered after (1) the trial court granted nonsuit on causes of action against the Casa Del Rey Homeowners Association (the Association) for nuisance and negligence, and on a cause of action against Pam Bargamian for defamation, and ruled in the Association's favor on a cause of action against it for declaratory and injunctive relief, and (2) the jury found against Haley on a cause of action against the Association for breach of contract, and on a cause of action against the Association, Patricia Lego and Pam Giannini for breach of fiduciary duty.
Haley contends the court abused its discretion by granting nonsuit on the causes of action for nuisance and defamation, refusing to grant declaratory and injunctive relief, and refusing to modify jury instructions pertaining to the availability of nominal damages for breach of contract. Haley also challenges the timeliness of the defendants' memorandum of costs. Court affirm the judgment.

During Adron Lee Bates's prosecution for selling cocaine base (People v. Bates (Super. Ct. San Diego County, 2006, No. SCD178150)) (hereafter case SCD178150),Bates disrupted the court proceedings and resisted the officers who tried to subdue him in the courtroom. He was prosecuted for resisting an executive officer (Pen. Code, 69)[2]and resisting an officer ( 148, subd. (a)(1)). The jury convicted him on both counts, and Bates admitted one strike prior ( 667, subds. (b)-(i), 668, 1170.12) and six prison priors ( 667.5, subd. (b)).

The trial court sentenced Bates in this case at the same time that it sentenced him in case SCD178150. The trial court specified the sentence in case SCD178150 as the principal term and imposed a prison sentence of 20 years in that case, which included a six-year sentence for the same six prison priors that Bates also admitted in this case. With respect to the convictions obtained in this case, the trial court sentenced Bates to 16 months in prison and stayed the execution of the six year sentence arising from the same prison priors for which it had imposed a six-year sentence in case SCD178150.

Bates argues (1) that the trial court abused the discretion given to it under Evidence Code section 352 by admitting evidence concerning Bates's plan to disrupt the court proceedings by using his feces as distraction in order to grab an officer's gun and try to shoot his attorney and the trial judge; (2) that the prosecutor committed misconduct by making improper statements during her closing argument; and (3) that the trial court erred by staying execution of Bates's six-year sentence for his prison priors in this case rather than either striking the sentence or imposing it.
Court conclude (1) that that the trial court did not abuse its discretion by admitting evidence of Bates's planned courtroom disruption, and (2) that Bates's arguments regarding prosecutorial misconduct lack merit. However, we conclude that the trial court did err by staying execution of the six-year sentence for Bates's prison priors rather than imposing the sentence or exercising its discretion to strike it. Accordingly, Court vacate the portion of the trial court's judgment staying the execution of that part of Bates's sentence, and Court remand for the trial court to determine whether to impose the six year sentence or to exercise its discretion to strike it.

jury convicted Adron Lee Bates of selling cocaine base (Health & Saf. Code, 11352, subd. (a); Pen. Code, 1203.073, subd. (b)(7)) and possession of cocaine base for sale (Health & Saf. Code, 11351.5). The trial court sentenced Bates to 20 years in prison.[1]
Bates contends that his conviction should be reversed because he was forced to appear at trial in his jail clothes. In the alternative, Bates contends that defense counsel offered ineffective assistance of counsel by not requesting that Bates be permitted to appear in civilian clothes.
Court conclude that Bates's arguments are without merit, and accordingly, Court affirm the judgment.

Plaintiff Victor Valenzuela was a pipefitter employed by the general contractor for a project owned by defendant The City of San Diego (City). He was injured while working on the project and filed suit against City, alleging a claim for premises liability. City moved for summary judgment on Valenzuela's complaint, arguing Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny impose a general bar against personal injury actions by an independent contractor's employee against the property owner who hired the contractor to perform work on its property, and none of the exceptions to the Privette bar were applicable. Valenzuela opposed the motion, arguing there were triable issues of fact whether exceptions to the Privette bar were present, and therefore summary judgment was inappropriate. The trial court found the undisputed facts established there were no exceptions to the Privette bar, granted City's motion and entered judgment for City. Valenzuela timely appealed. The judgment is affirmed.

A modification decision.

Appellant Gary J. Howe appeals the probate courts decision to order the sale of property devised to him and respondent Richard Howe pursuant to their mothers will. Court affirm.