CA Unpub Decisions

After the County of Riverside (the County) won a summary judgment motion, it filed a motion to recover attorney fees and costs under Code of Civil Procedure section 1038. That section allows a defendant to recover defense costs when the court determines that a proceeding was not brought in good faith and with reasonable cause. The County requested attorney fees of $20,825 and costs of $520.36.
The trial court granted the Countys motion and awarded it $3,000 in defense fees and costs. The County appeals, contending that the amount awarded is inadequate to reimburse it for the fees and costs it incurred as a result of this allegedly frivolous lawsuit. The award of attorney fees under section 1038 is affirmed.

This is the second appeal in this case following the juvenile courts hearing pursuant to Welfare and Institutions Code section 366.26. The first appeal, case No. E038817, was brought by the San Bernardino County Department of Childrens Services (the Department) and minors Child 1 and Child 2 (the girls), who claimed that the court erred in failing to issue a finding that the girls were adoptable when it found that their siblings were adoptable. They further contended that the court abused its discretion by finding that the section 366.26, subdivision (c)(1)(A), exception applied to deny the request for termination of the parental rights to them. In an unpublished decision, we agreed with the Department and the children and reversed the orders as to Child 1 and Child 2, which denied the request for termination of parental rights and selected guardianship as the permanent plan. Specifically, Court concluded that the record supported the courts implied finding that the girls were adoptable, and Court held that the courts decision to deny termination of parental rights based on the section 366.26, subdivision (c)(1)(A) exception was contrary to the law, not supported by the evidence, and amounted to an abuse of discretion. The matter was remanded to the juvenile court for further proceedings.
On remand, the juvenile court found that the girls were likely to be adopted and terminated parental rights. Michelle J. (Mother) now appeals from the order terminating her parental rights to the girls. She contends she was not given notice that the Department was recommending termination of parental rights or that the court was going to conduct a section 366.26 hearing. The Department disagrees substantively, and further moves for a dismissal of this appeal on the grounds the hearing held on remand was not a section 366.26 hearing so the statutory notice was not required. It further argues that Mother was provided notice of the hearing, was ordered to attend, and the purpose of the hearing was to implement the order of this court.

Petitioner (mother) filed a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452 (formerly rule 38.1(a)), regarding her son F.H. (the child). Mother contends that the juvenile court erred in denying her reunification services. Court deny mothers writ petition.

It was alleged in a juvenile wardship petition (Welf. & Inst. Code, 602) that appellant S. Q., a minor, committed three felonies, viz., carjacking (Pen. Code, 215, subd. (a)), vehicle theft (Veh. Code, 10851) and second degree robbery (Pen. Code, 211 & 212.5, subd. (c)), and two misdemeanors, viz., being under the influence of methamphetamine (Health & Saf. Code, 11550, subd. (a)) and giving false information to a police officer (Pen. Code, 148.9, subd. (a)). Appellant admitted the misdemeanor allegations and, following a jurisdiction hearing, the court found the felony allegations true. Following the subsequent disposition hearing, the court adjudged appellant a ward of the court, placed her on probation and ordered her committed to the Tulare County Youth Treatment Center for a period of 45 to 180 days.
On appeal, appellant contends the court prejudicially erred in (1) refusing a defense request to recall a prosecution witness who had previously testified and been excused and (2) refusing to allow a defense investigator to testify concerning an experiment the investigator apparently conducted. Court affirm.

Appellant, pled guilty on June 20, 2006 to second degree murder (Pen. Code, 187, subd. (a), count one) and felony unlawful taking of a vehicle (Veh. Code, 10851, subd. (a), count four). Allegations that appellant committed robbery ( 211, count two) and burglary ( 459, count three) were dismissed. Appellant also admitted a prior prison term enhancement (Pen. Code, 667.5, subd. (b)). On September 8, 2006, the trial court sentenced appellant to the upper term on count four of three years plus one year for the prior prison term enhancement. Appellants determinate sentence is four years plus an indeterminate sentence of 15 years to life on count one. Appellant was awarded custody credits and ordered to pay a restitution fine. Appellant filed a timely notice of appeal but did not obtain a certificate of probable cause. Appellant contends the trial court violated his right to a jury trial when it imposed the upper term on count four in violation of Blakely v. Washington (2004) 542 U. S. 296 (Blakely) and Cunningham v. California (2007) U. S.[127 S.Ct. 856] (Cunningham). Court affirm the trial courts sentence.

A modification decision.

Donald R. Nelson and Brenda Arnett Nelson (the Nelsons), purchasers of residential real property, appeal from the judgment in favor of the real estate agent for the sellers in their action for damages arising out of failure to disclose defects in the property. They argue the trial court made prejudicial rulings on the admission of evidence and jury instructions. Court find no error and affirm the judgment.
The Nelsons also appeal from the order awarding the agent expert witness fees under Code of Civil Procedure section 998 for their failure to accept an offer to compromise. They claim the offer was ambiguous and not made in good faith. Court find the offer was uncertain and did not operate to shift costs under section 998; accordingly, Court reverse the order awarding expert fees.

After the trial court denied David William Chandlers renewed motion to suppress evidence, he pled guilty to drug-related offenses and admitted drug-quantity enhancements. The trial court sentenced him to state prison for a total term of three years. On appeal, Chandler challenges the courts ruling on his renewed motion to suppress evidence discovered pursuant to a warrantless search. Court conclude the court improperly denied the motion and reverse the judgment.

Eight state court class actions were filed against Kia Motors based on an allegedly defective front braking system in its 1997 through 2000 Sephia models: California, Pennsylvania, New Jersey, Tennessee, North Carolina, Florida, Illinois and Alabama. Additionally, a federal court class action was filed in Florida. The law firm of Lieff, Cabraser, Heimann & Berstein, hereinafter Lieff & Cabraser, is counsel of record for the putative class only in the federal Florida action.
A 47 state settlement not including Florida was tentatively reached in this California action, Maria Santiago et al. v. Kia Motors (Super Ct. Orange County, 2005. No. 01CC01438) in May 2005. (Pennsylvania and New Jersey were also not part of the settlement.[1]) The proposed settlement provided a potential payout of $8 million to the 47-state class, with payments to each consumer capped at $275. In June 2005, counsel from the state actions in Illinois, Tennessee, and North Carolina, plus Lieff & Cabraser, filed objections to the proposed settlement.
Over the course of the next few months the proposed settlement was modified: The overall cap was increased to $14 million with a $600 maximum payout per consumer, and Kia undertook the costs of administration. On the attorney fee issue, Kia agreed to provide $2.1 million in attorneys fees, exclusive of the $14 million total liability already included in the enhanced settlement, to counsel on the Illinois, Tennessee, North Carolina, and California cases, i.e., to counsel representing plaintiffs within the 47-state area covered by the settlement. However, Kia did not want to fund any fees for Lieff & Cabraser. The notice of the settlement provided to consumers alerted them to the fact that Lieff & Cabraser were seeking up to another $500,000, but there was no fund established by Kia from which any fee claim by Lieff & Cabraser might be paid.
Lieff & Cabrasers claim for attorney fees was heard in late January 2006, with the counsel on the Illinois, Tennessee, North Carolina, and California cases weighing in on their side. Lieff & Cabraser was with them shoulder to shoulder all the way.[3] A mainstay of the argument was that Lieff & Cabraser could have supported an inferior settlement in the federal Florida action, but supported Californias jurisdiction in order to obtain a better settlement for the class.
Although the court did not include any written justification for its order, it denied Lieff & Cabrasers application for fees and costs in its entirety.
Lieff & Cabraser then filed this appeal from the order of denial. Kia has filed a motion to dismiss the appeal arguing Lieff & Cabraser lacks standing to appeal. Court note that the firm has filed with this court a certificate of interested entities or persons and includes the names of five non party class members as their clients, as well as non party law firms (apparently co counsel in Florida).
The appeal brought by Lieff & Cabraser is dismissed.

A jury convicted Defendant of two counts of first degree residential burglary, and the court found he had previously suffered numerous prior felony convictions including multiple strikes under the Three Strikes law. He argues the trial court abused its discretion by denying his mistrial motion concerning one of the counts because the prosecutor was dilatory in providing discovery concerning the criminal record of a witness. He also contends his 75 year to life sentence is cruel and unusual. Finding no basis to disturb the judgment, Court affirm.

Lawrence Porche (Porche) appeals a judgment following a jury trial of his strict product liability claim against Paradigm Medical Industries, Inc., (Paradigm). Porches theory of recovery was that a medical cutting instrument, a microkeratome utilized by the ophthalmologist during Lasik surgery, was defectively designed, making it susceptible to injury producing misassembly by the surgeon or technician, as Porche alleged occurred in his case. Porche sought to introduce into evidence certain corporate documents pertaining to complaints received and investigated by the designer and manufacturer of the device, Paradigms predecessor in-interest, Innovative Optics, Inc., (Innovative). The documents (complaint forms) were compiled prior to and shortly after Porches eye surgery. They memorialized reported incidents of user misassembly of the microkeratome resulting in deep cuts, i.e., beyond desired limits. The court, noting the complaint forms constituted hearsay evidence, eventually excluded them under Evidence Code section 352[1] as highly prejudicial and likely to cause undue consumption of time. Porche concedes he offered the out-of-court statements to prove the truth of the matter stated ( 1200, subd. (a)), i.e., that the microkeratome had been misassembled and caused injury in the past. But he argues the complaint forms were admissible as exceptions to the hearsay rule business records ( 1271), party admissions ( 1220, 1224), and third-party declarations against interest ( 1230). He further contends the court abused its discretion by excluding the evidence under section 352 because the documents were so critical to proving his case. Finally, Porche argues he was entitled to a new trial based on the erroneous evidentiary ruling and on the ground the verdict was against the evidence. Court affirm the judgment.

Two residential loan companies Four Corners Realty Financial (Four Corners) and The Burford Group filed lawsuits against each other. A jury found in favor of Four Corners, awarding it a total of $92,000 in compensatory damages on claims for constructive fraud, breach of fiduciary duty, and negligent misrepresentation, and $75,000 in punitive damages. The jury awarded no damages to The Burford Group or its owner, Noah Burford (Burford) (collectively referred to as appellants).
Appellants argue there was no evidence supporting the element of causation on Four Cornerss claims for constructive fraud and breach of fiduciary duty. We agree the only evidence of causation of one type of damage alleged was inadmissible hearsay, and the trial court erred by admitting that evidence; the award of $92,000 in compensatory damages cannot stand. However, there was evidence of damages totaling $65,750, which did not suffer the same evidentiary problem. Therefore, Court direct the trial court to modify the amount of the judgment to reflect only the damages for which there was admissible evidence at trial. The same analysis applies to the element of causation on the negligent misrepresentation claim.
Finally, appellants contentions that the trial court made miscellaneous errors do not require reversal of the judgment. Appellants take issue with the courts comments and rulings during opening statements and closing arguments, but the trial court has wide discretion to control the trial. Although the record shows the trial court initially misunderstood the standard by which it was to consider appellants motion for a new trial, the court did ultimately reweigh the evidence before denying the motion. In any event, any error was not prejudicial.

In June 2005, the trial court entered an order establishing the amount of Tung Luongs child support arrearages. In August 2006, the Orange County Department of Child Support Services (the County) applied ex parte for a nunc pro tunc order to correct a clerical error in the arrearages order to reflect that the obligee of the order was Luongs ex wife, Min Wang, not the County. The family court granted the application, and entered the corrected order nunc pro tunc. Luong appeals either from the order granting the application or from the corrected order. Because the court properly corrected a clerical error, and because the order was entered nunc pro tunc to the original date of the arrearages order, Luongs appeal is either from a nonappealable order or untimely; in either case, it must be dismissed.

Troy P. appeals from an order of the juvenile court declaring another man to be the presumed father of Troys biological son, Anthony P. He argues the court violated his right to due process when it granted a Welfare and Institutions Code section 388 modification petition without notice to the parties and without a hearing. For the reasons stated below, Court affirm.