CA Unpub Decisions

Appellants, own homes in the Cloisters housing development in Morro Bay. They are subject to a special assessment for maintenance of a park, open space, medians and parkways in the subdivision. They contend they do not receive special benefits from the assessments beyond those enjoyed by the general public. In a complaint for injunctive and declaratory relief, appellants challenged the 2004/2005 assessment as improper under the Landscaping and Lighting Act of 1972 (the Act) (Sts. & Hy. Code, 22500 et seq.)[1]and Article XIII D of the California Constitution (added by Initiative Measure Prop. 218, 4, approved Nov. 5, 1996).
Court affirm judgment entered against appellants after denial of their motion for writ of administrative mandamus. The special assessment is valid under the Act. It is also not subject to the procedure and approval processes of Section XIII D, as appellants now concede.

By petition for writ of mandate, mother Amanda G. challenges the juvenile court order terminating her reunification services and setting a permanency planning hearing for her children. Court deny the requested relief.

Defendant waived jury trial on a multi count information arising from allegations he raped his 14 year old sister in law Kayla G. Thereafter, the court granted defendants motion to dismiss the charge of forcible rape alleged in count one (Pen. Code, 261, subd. (a)(2)), and found him guilty of committing a lewd or lascivious act upon a 14-year-old child and being at least 10 years older than the victim ( 288, subd. (c)(1) count two), felony unlawful sexual intercourse ( 261.5, subd. (d) count three), aiding and abetting false impersonation ( 529, subd. (3) count four), and misdemeanor resisting a peace officer ( 148, subd. (a)(1) count five). It also found true the allegations defendant had served a prior prison term ( 667.5, subd. (b)) and suffered three prior serious felony convictions within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12).
The court denied defendants request to dismiss two or more strikes and sentenced him to 26 years to life: 25 years to life in count two plus one year for the prior prison term; and 25 years to life in counts three and four, each to be served concurrently and stayed pursuant to section 654. The court did not sentence defendant for the misdemeanor in count five. The court awarded defendant 381 days of actual credit at the sentencing hearing, but the minute order and abstract of judgment reflect a total of 432 days of presentence credit.

On appeal, defendant argues he is entitled to reversal of his conviction in counts two, three and five because: (1) the trial court admitted stipulations that amounted to guilty pleas without advising him of his constitutional rights as required under Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl), overruled in part on another ground in Mills v. Mun. Court (1973) 10 Cal.3d 288, 306-307; (2) his trial counsel provided ineffective assistance in proffering stipulations that amounted to guilty pleas with no benefit to defendant; and (3) the trial courts coercive threats to charge two key witnesses with perjury violated defendants right to confrontation and to present a defense. He also argues the trial court violated his right to be present at trial by proceeding without sufficient evidence thathis absence was voluntary and without allowing him to present evidence about his absence in support of his motion for new trial. Defendant challenges his sentence, arguing: (1) the court abused its discretion in denying his motion to strike prior strike convictions; (2) his sentence constituted cruel and unusual punishment; and (3) the court erred in calculating his presentence credits. We shall modify the judgment to award defendant additional presentence credits, and affirm the judgment in all other respects.

Plaintiff filed his complaint in propria persona for malpractice against Marshall Medical Center (Hospital) and a physician, Rajiv Pathak, in February 2005. The defendants moved successfully for summary judgment on the ground (among others) that the action is time-barred. The plaintiff filed his timely appeals in propria persona from the subsequent entry of judgment in favor of each defendant. Court have consolidated the appeals solely for purposes of consideration and argument. Court affirm.

Appellant brought this action against Safeway, Inc. (Safeway) for negligence and violations of the Unfair Competition Law (Bus. & Prof. Code, 17200 et seq. (the UCL)) and the Consumers Legal Remedies Act (Civ. Code, 1750 et seq. (the CLRA)), arising out of Safeway's practice of placing anti theft tags on the packaging of the over the counter medications it sells. He appeals a judgment entered against him after the superior court sustained Safeway's demurrer to his claims without leave to amend, contending that his allegations are sufficient to state the asserted causes of action. Court find his arguments unavailing and affirm.

A jury convicted Clayton Mack of three counts of forcible rape (Pen. Code, 261, subd. (a)(2)), three counts of forcible oral copulation ( 288a, subd. (c)(2)), kidnapping for purposes of rape ( 209, subd. (b)(1)), residential burglary ( 459), making a criminal threat ( 422), inflicting corporal injury on a cohabitant ( 273.5, subd. (a)), attempting to dissuade a witness from testifying ( 136.1, subd. (a)(2)) and disobeying a court order ( 166, subd. (a)(4)). The jury also found true a series of associated special allegations. The trial court sentenced Mack to an indeterminate prison term of 25 years to life, plus a consecutive determinate prison term of 38 years 8 months. On appeal, Mack argues the court erroneously denied his motions to change retained counsel and his motion to represent himself under Faretta v. California (1975) 422 U.S. 806. He also argues that, under Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham), the court's imposition of the upper term for one component of his determinate sentence (count 9) was error.

The trial court denied Sergio Alcala's petition for writ of mandate seeking review of the San Diego City Employees' Retirement System's (SDCERS) denial of Alcala's application for disability retirement benefits. On appeal, Alcala contends: (1) no substantial evidence supports the court's determination he is not permanently incapacitated; (2) SDCERS is collaterally estopped from denying him disability retirement benefits by the Workers' Compensation Appeals Board's (WCAB) ruling regarding Alcala's injury; and (3) the attorney for SDCERS was overzealous at the administrative hearing.
The denial of the writ of mandate is affirmed.

Plaintiffs (Buyers) appeal an order denying their motion for attorney fees after a judgment was entered on a special jury verdict awarding them damages in their construction defect action against defendant Pacific Bay Homes, LLC (Homes). On appeal, Buyers contend they are entitled to an award of attorney fees because: (1) the attorney fees provision in the purchase agreement between Buyers and Pacific Bay Properties, Inc., (Properties) binds Homes; (2) that attorney fees provision applies to Buyers' tort cause of action; and (3) Buyers prevailed in their action against Homes.
The order is affirmed.

Appellant appeal following the dispositional hearing in the dependency case of their son, Joseph B. They contend the evidence was insufficient to support the jurisdictional finding Joseph was a dependent under Welfare and Institutions Code section 300, subdivision (b).
The judgment is reversed.

Plaintiff appeals from the trial courts order dismissing its action after sustaining, without leave to amend, defendant and respondent Banca Financial, Inc.s (hereafter defendant) demurrer to its third amended complaint for assignment of rents. Plaintiff also challenges the award of attorney fees. As described below, Court find plaintiffs contentions to be without merit and affirm the judgment.

Rapid Settlements, Ltd. (Rapid) petitioned the trial court to approve a transfer to Rapid of $40,000 or one-third of a $120,000 payment due to Randy L. Griffin (Griffin) on October 3, 2011, pursuant to a structured settlement agreement. Insurance Code sections 10134 through 10139.5 (collectively the Act) govern transfers of payments due to payees, such as Griffin, under structured settlement agreements. The Act imposes certain terms and conditions upon such transfers and requires court approval before a transfer may be deemed valid and enforceable. ( 10136 to 10138.)
Interested parties Symetra Assigned Benefits Service Company (SABSCO) and Symetra Life Insurance Company (Symetra Life) (collectively Symetra) objected to the approval of the transfer in the superior court. The transfer was approved, and Symetra appeals the order approving the transfer. Symetra contends the order approving the transfer must be reversed and the transfer declared void because (1) the $40,000 payment is not assignable under the terms of the structured settlement agreement, and, alternatively, (2) the transfer agreement between Rapid and Griffin fails to comply with the requirements of the Act. Court agree with Symetras first contention. Accordingly, Court reverse the order approving the transfer and do not reach Symetras second contention.

Minor admitted an allegation that he violated Penal Code section 288, subdivision (a) (lewd act upon a child). On disposition, the trial court ordered minor to remain in the custody of his probation officer and be placed in a suitable foster care facility. On appeal, minor contends the trial court erred when it refused to place him with his father. Court conclude the trial court acted within its discretion in its placement of minor and, therefore, affirm the judgment.

Appellant was convicted after jury trial of carjacking, unlawfully taking or driving a vehicle, receiving a stolen vehicle and driving a vehicle with a suspended or revoked license. The court found true a probation violation in another case. (Pen. Code, 215, subd. (a) & 496d, subd. (a); Veh. Code, 10851, subd. (a) & 14601, subd. (a).) He was sentenced to an aggregate term of nine years imprisonment.
Appellant challenges the sufficiency of the evidence proving the carjacking. He also contends that the trial court infringed his due process protections by failing to exclude all evidence pertaining to the carjacking or to instruct the jury that the government had lost important evidence as sanctions for the polices pretrial loss of a piece of evidence. Additionally, appellant argues that the court improperly admitted statements that he made to a police officer before his arrest. Finally, he challenges imposition of the aggravated term for count 1 as prejudicial Blakely/Cunningham error. None of these arguments are persuasive; Court affirm.

The appellant, is a remainder beneficiary of a trust created by her father and his wife, Creighton W. Brower and Teri Alice Brower, upon the death of Creighton Brower in 2000. Teri Brower is the income beneficiary of the trust during her lifetime. This appeal concerns an estimated tax payment made by Creighton Brower shortly before his death. He made the payment from a joint checking account he maintained with his wife, but it was to be applied toward a tax liability arising from his separate property interest in a closely held corporation. When a portion of the payment was refunded after Creightons death, the trustees of the trust petitioned the probate court for instructions on how to allocate the refund as between the trust and Teri Brower. The court tentatively ruled the entire refund belonged to Teri Brower as Creightons surviving spouse. But Pomeroy, in a belated objection to the proposed ruling, contended the refund should be divided instead between Teri and the trust according to a pro rata allocation established by an agreement settling Creightons estate. The court, following a hearing, adopted this latter view.
Pomeroy then filed a motion to recover her costs and attorney fees, together with prejudgment interest, under the common fund doctrine, on the theory her intervention had created or preserved a common fund for the benefit of all the remainder beneficiaries. Both the trustees and Teri Brower opposed the motion. The court denied it, and Pomeroy has appealed. Court reverse the courts order insofar as it finds Pomeroys efforts did not benefit the remainder beneficiaries.