CA Unpub Decisions

Defendant Hayes Lemmerz International, Inc., (Hayes) appeals an order denying it attorney fees after successfully moving for judgment (Code Civ. Proc., 631.8) on the breach of contract and other claims asserted by plaintiff Jay Kim doing business as JB Enterprises, Inc., (JB). Hayes contends the trial court erred by applying Michigan law, which treats contractual attorney fees as an item of damages, and instead should have applied California law, which treats them as costs. Alternatively, Hayes argues the trial court should have awarded fees even under Michigan law.
Court conclude the trial court erred in denying attorney fees. Michigan law pertaining to contractual attorney fee provisions conflicts with a fundamental policy of California, embodied in Civil Code section 1717, to award attorney fees to the party prevailing on a contract containing an attorney fee clause, even if the clause does not provide for that party to recover fees. California has a materially greater interest in enforcing the equitable rules governing access to its own courts than Michigan does in having its law pertaining to attorney fees enforced by a foreign jurisdiction. Accordingly, Court reverse.

Court appointed counsel to represent defendant David Moraga on appeal. Counsel filed a brief setting forth a statement of the case. Counsel did not argue against his client, but advised the court he found no issues to argue on his behalf. Court provided defendant 30 days to file written argument in his own behalf. That period has passed, and we have received no communication from him. Court have found no arguable issues. The judgment is affirmed.

Court appointed counsel to represent Ricardo Rodriguez Gomez on appeal. Counsel filed a brief which summarized the facts of the case, noting that Gomez admitted violating his probation after having pled guilty to possession of methamphetamine while in jail. (See Pen. Code, 4573.6.) Both the admission and the guilty plea were properly taken and recorded. (See Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122; see also People v. Garcia (1977) 67 Cal.App.3d 134.) The trial court then imposed a prison sentence of two years for the substance offense. The notice of appeal limited the issues to those affecting the sentence; thus, no certificate of probable cause was obtained or needed. Appointed counsel did not argue against Gomez, but advised the court no issues were found to argue on his behalf following the trial courts correction of the abstract of judgment done in response to notification by the Department of Corrections. Court have examined the record and agree with counsels assessment that no arguable issue exists. (See People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Gomez was given 30 days to file written argument in his own behalf. That period has passed, and we have received no communication from Gomez. The judgment is affirmed.

Court appreciate the trial judges Solomonic approach to this custody and visitation case. He decided to end years of bickering over the logistics of visitation by asking each party to submit a proposed parenting plan, in which each party would assume that he or she had sole physical custody of the two children involved in the case, and would then write the ticket for the other partys visitation with the party giving the more generous visitation the winner. In this case the party promising the more generous visitation was the winner, and the trial judge indeed awarded that party custody. That award required a change of custody from the parent with whom the two daughters had lived with for the previous four years. A good idea perhaps, but even so, Court must reverse. The judges methodology amounted to consigning a custody decision to a process, rather than to informed judicial discretion. It also was inherently flawed in the way that it was conducted because neither side had any opportunity to critique, cross examinez, or otherwise respond to the others proposed plan.

John C. and Jill S. appeal from a judgment that denied their changed circumstances petitions, and terminated parental rights to their daughter, J., pursuant to Welfare and Institutions Code section 366.26. They argue the juvenile court erred when it refused to hold a hearing on the petitions, and when it refused to apply the benefit exception found in section 366.26, subdivision (c)(1)(A). Court disagree and affirm.

After the police arrested petitioner Andrea E. (mother) for allegedly inflicting physical injuries on the child of an acquaintance, real party in interest Orange County Social Services Agency (SSA) detained mothers minor children, Rodolfo E. and Sierra K., and petitioned to have them declared dependents of respondent juvenile court. SSA attempted to locate and notify the alleged father of each child about the proceedings, but neither one appeared, and the court entered defaults as to each of them. At a combined jurisdictional and dispositional hearing, mother submitted on the petitions amended allegations. The court found the allegations to be true, declared the children dependents, placed them in SSAs custody, and approved a family reunification plan.
The petition is granted. The order to show cause is discharged. The orders entered by the court on February 27, 2007 are vacated, and the matter is remanded for a contested 18 month review hearing.

Defendant was convicted after jury trial of two counts of carjacking (Pen. Code, 215; counts 1 & 4),[1] and three counts of second degree robbery ( 211, 212.5, subd. (c); counts 2, 3 & 5). The jury also found true allegations that defendant was armed with a handgun ( 12022, subd. (a)(1)) during the commission of all the offenses, and that he personally used a handgun ( 12022.53, subd. (b)) during the commission of counts 1, 2, 4 and 5. Defendant admitted having served a prior prison term. ( 667.5, subd. (b).) The trial court sentenced defendant to 26 years, four months in state prison.
On appeal defendant contended that (1) the trial court erred in failing to honor his timely request to proceed in propria persona, (2) the court misinstructed the jury on the use of evidence of uncharged offenses, (3) the court prejudicially erred when it gave CALJIC No. 2.03, (4) the cumulative effect of the above errors denied him due process, (5) the courts imposition of an upper term on the one count and consecutive terms on two others violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely), (6) the order to pay attorneys fees is not supported by substantial evidence, and (7) clerical errors in the abstract of judgment should be corrected. On August 18, 2005, we struck the order to pay attorneys fees, ordered the abstract of judgment corrected to accurately reflect the trial courts sentence, and affirmed the judgment as so modified. Our Supreme Court denied review, but the United States Supreme Court granted defendants petition for a writ of certiorari, vacated our opinion, and remanded the matter back to us for reconsideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Upon reconsideration of the Blakely issue following Cunningham, Court find that the matter must be reversed and remanded for resentencing.

A jury convicted Austin Rios of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b); all further undesignated section references are to the Penal Code), shooting at an inhabited dwelling ( 246), and possession of marijuana for sale (Health & Saf. Code, 11359). The jury found, pursuant to section 12022, subdivision (a)(1), that at the time of the shooting Rios was armed with a firearm, and that, pursuant to section 186.22, subdivision (b)(1), the shooting was done for the benefit of a criminal street gang. The trial court denied Rios motion for a new trial and, applying section 186.22, subdivision (b)(4)(B), sentenced him to 15 years to life for violating section 246, plus a consecutive one-year term pursuant to section 12022, subdivision (a)(1), and a concurrent 16-month term for possessing marijuana. The court stayed a concurrent six-year term for violation of section 245.

Rios appeals, contending that the trial court erred prejudicially by (1) answering a jury question during deliberations without consulting Rios counsel; (2) failing to instruct the jury that the prosecution had violated discovery rules; (3) overruling Rios hearsay objection to a statement contained in a report that Rios had admitted that he was a gang member; and (4) imposing a one-year sentence pursuant to section 12022. He also maintains that substantial evidence does not support his conviction for violation of section 246.
Court agree with Rios that the court erred in imposing a one-year sentence under section 12022. Court disagree with his other contentions.

Plaintiff appeals from a summary judgment entered in favor of defendants County of Los Angeles (sued erroneously as Los Angeles County USC Medical Center and County of Los Angeles, Department of Health Services), David Zamorano and Diane Fuqua. Court affirm the judgment.

Jose Manuel Compean appeals from a judgment entered after a jury convicted him of possessing methamphetamine for purposes of sale, (Health & Saf. Code, 11378) and possessing marijuana for purposes of sale ( 11359). He contends his conviction must be reversed because (1) the trial court erred when it denied his motion to suppress, (2) the court erred when it admitted certain evidence at his trial, and (3) the prosecutor committed misconduct at trial and during final argument. Court conclude no prejudicial errors were committed at appellants trial and affirm.

Defendant was charged with three drug-use or possession violations along with violation of Vehicle Code section 14601.2, subdivision (a), driving while his license was suspended or revoked as a result of a previous conviction of driving under the influence (DUI). At trial, defendant moved under Penal Code section 1385 to dismiss the Vehicle Code violation in order to make him eligible for probation and drug treatment under Proposition 36The Substance Abuse and Crime Prevention Act of 2000. The court denied the motion and defendant was subsequently convicted by a jury on all counts. He later received a prison term of three years. On appeal, defendant contends that the court abused its discretion in refusing to dismiss the Vehicle Code violation since that was the only obstacle in the way of his Proposition 36 eligibility, and he as well as society would benefit from him, an addict, undergoing drug rehabilitation. He further contends that he received ineffective assistance of counsel for his attorneys failure to have renewed the motion to dismiss at sentencing. Court reject these contentions and affirm the judgment.

Defendant appeals from a judgment entered after a jury convicted him of possessing methamphetamine for purposes of sale, (Health & Saf. Code, 11378)and possessing marijuana for purposes of sale ( 11359). He contends his conviction must be reversed because (1) the trial court erred when it denied his motion to suppress, (2) the court erred when it admitted certain evidence at his trial, and (3) the prosecutor committed misconduct at trial and during final argument. Court conclude no prejudicial errors were committed at appellants trial and affirm.

A jury found defendant, Michael Tyrone Johnson, guilty of assault with force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) and corporal injury to a former cohabitant, resulting in a traumatic condition (Pen. Code, 273.5, subd. (a)). As to both counts, the jury also found true the special allegations that defendant committed serious felonies and personally inflicted great bodily injury under circumstances involving domestic violence (Pen. Code, 1192.7, subd. (c)(8), 12022.7, subd. (e)). The trial court sentenced defendant to seven years in prison. On appeal, defendant alleges a multitude of errors, including evidentiary errors, instructional error, ineffective assistance of counsel, and cumulative error. Court affirm.

Appellant appeals a judgment following the grant of summary judgment in favor of respondents San Francisco Unified School District (SFUSD or District), Arlene Ackerman, John Rubio, and Janette Hernandez in his defamation action. Because we conclude that appellant has not demonstrated the existence of a triable issue of material fact as to any claim, Court affirm the trial courts judgment.