CA Unpub Decisions

Wawanesa General Insurance Company (Wawanesa) petitions for a writ of mandate challenging the trial court's denial of its demurrer to the first amended complaint filed by Ghafour Aimaq. The legal issue in this case is identical to the issue in Allstate Insurance Company v. Superior Court (Delanzo) (2007) Cal.App.4th, filed simultaneously with this opinion. Based on Delanzo, Court conclude the court erred in overruling Wawanesa's demurrer. Court thus grant Wawanesa's petition for writ of mandate, and order the court to vacate its order overruling Wawanesa's demurrer and enter a new order sustaining the demurrer.

Interinsurance Exchange of the Automobile Club (Interinsurance Exchange) petitions for a writ of mandate challenging the trial court's denial of its demurrer to the first amended complaint filed by Michelle Montpetit. The legal issue in this case is identical to the issue in Allstate Insurance Company v. Superior Court (Delanzo) (2007) Cal.App.4th, filed simultaneously with this opinion. Based on Delanzo, Court conclude the court erred in overruling Interinsurance Exchange's demurrer. Court thus grant Interinsurance Exchange's petition for writ of mandate, and order the court to vacate its order overruling Interinsurance Exchange's demurrer and enter a new order sustaining the demurrer.

Cassie L. appeals judgments terminating parental rights to her children, Ashley L., E.L., and Alana L. She also appeals an order denying her petition for modification under Welfare and Institutions Code section 388. Court affirm the judgments and order.

Herbert Goettsch was standing outside a chain link fence that enclosed a warm up area for horses that were performing in a rodeo produced by El Capitan Stadium Association, Inc. (El Capitan). A horse was standing on the inside of the fence, tied to the fence with a rope. As Goettsch stood on the outside of the fence watching the rodeo, he placed both of his hands on the chain link fence. Goettsch's hands became entangled in the rope as the horse pulled away from the fence. Four of Goettsch's fingers were severed in the incident.
Goettsch filed a two count complaint against El Capitan in which he alleged negligence and premises liability. El Capitan moved for summary judgment on the ground that Goettsch's claims were barred by the doctrine of primary assumption of risk, and also on the ground that Goettsch would not be able to establish the threshold element of duty as to either of his claims because the horse presented an obvious danger. Without specifying on which ground it based its decision, the trial court granted El Capitan's motion for summary judgment. The trial court subsequently entered judgment in favor of El Capitan.
On appeal, Goettsch claims that El Capitan is not entitled to summary judgment on either of the two grounds it raised in its motion. Court agree and reverse the judgment.

Samantha G. appeals the judgment terminating her parental rights over Anthony G. She contends the juvenile court erred by denying her Welfare and Institutions Code section 388 modification petition and by declining to apply the beneficial relationship and sibling relationship exceptions to termination ( 366.26, subds. (c)(1)(A), (c)(1)(E)). Court affirm.

A jury convicted Anthony Carranza, Jr. of one count of commercial burglary, in violation of Penal Code section 459. He admitted a prior prison term enhancement under section 667.5, subdivision (b). The enhancement resulted from a 1995 conviction for making terrorist threats, a violation of section 422. The prior conviction was also admitted to be a strike under sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1). Defendant was therefore sentenced to a doubled midterm for a total of four years in state prison.
On appeal, defendant contends: (1) the trial court erred in jury selection; (2) the evidence was insufficient to support the burglary conviction; (3) the court erred in denying his Romero motion; and (4) the court erred in denying his motion to reduce the crime to a misdemeanor.

Defendant was charged with two felony counts of willfully and unlawfully using force and violence, and inflicting injury upon a police officer, in violation of Penal Code section 243, subdivision (c)(1) (counts 1 and 2); two felony counts of willfully and unlawfully attempting by means of threats and violence to deter and prevent a police officer from performing duty, in violation of section 69 (counts 3 and 5); and one felony count of possessing an instrument and weapon known as a billy, in violation of section 12020, subdivision (a)(1) (count 4). It was further charged that defendant committed these felonies within five years of two separate felony convictions in which defendant served prison time. ( 667.5, subd. (b).)
On October 7, 2005, a jury found defendant guilty of all charges except the weapon possession charge. In a bifurcated trial, defendant admitted the two prior convictions. The trial court sentenced defendant to the upper term of three years for the first violation of section 243, subdivision (c)(1), and a consecutive sentence of eight months for the second violation of section 243, subdivision (c)(1). The court stayed defendants sentences on the other two counts, but added an additional one-year sentence for each of the two prior felony convictions.
Defendant appeals, contending the evidence fails to establish that the damages to the officers were serious enough to qualify as injuries under section 243, subdivision (c)(1). He also requests a review of the trial courts denial of his Pitchess motion. The judgment is affirmed.

A modification decision.

Appellant is the mother of minors Preston and Patrick. Appellant Lamar F. is an alleged father of Patrick. At a hearing held pursuant to Welfare and Institutions Code section 366.26, the court terminated Brandis parental rights to her two children, as well as the parental rights of any alleged fathers. Brandi contends that the court erred in finding that the beneficial relationship exception to terminating parental rights did not apply. (See 366.26, subd. (c)(1)(A).) Lamar contends that the court failed to comply with the notice requirements of the Indian Child Welfare Act (the ICWA) after he informed the court of his possible Cherokee ancestry. (See 25 U.S.C.A. 1912(a).) Brandi joins in Lamars argument pursuant to rule 13(a)(5) of the California Rules of Court.
Court hold: (1) there is substantial evidence to support the courts finding with respect to the beneficial relationship exception; (2) Lamar does not have standing to challenge the termination of his parental rights; and (3) on this record, there was no obligation to send ICWA notices following Lamars assertion of Cherokee ancestry. Court dismiss Lamars appeal, and affirm the orders made at the section 366.26 hearing.

The County of Tulare (County) appeals from an order directing it to reinstate employee James Taylor to the active payroll and pay him lost wages and benefits. The superior court determined that County dismissed Taylor for disability for purposes of Government Code section 31725 and, therefore, was obligated to reinstate Taylor. The superior courts understanding of section 31725 was based in part on a published opinion of this court that subsequently was reversed. In Stephens v. County of Tulare (2006) 38 Cal.4th 793 (Stephens), the California Supreme Court adopted a much narrower interpretation of section 31725 than was used in the opinion it reversed.
As a result of this sequence of events, the decision of the superior court was based on an interpretation of section 31725 that is no longer good law. Accordingly, the superior courts decision cannot be upheld. Remand for further proceedings is the appropriate disposition of this appeal. First, whether Taylor was dismissed for purposes of section 31725 is a question of fact. Second, the superior court should decide this question of fact in the first instance using the interpretation and guidance provided by the California Supreme Court in Stephens. Third, the Stephens decision has informed the parties of the statutory interpretation applicable to their dispute; remand will give them the opportunity to develop their positions based on that new interpretation. Accordingly, Court reverse and remand this matter for further proceedings.

On March 16, 2005, appellant, Anselmo Ruiz Aguilera, pled no contest in case No. PCF140771 to felony allegations that he committed second degree burglary on August 1, 2004 (Pen. Code, 459, count one) and that he received stolen property on August 31, 2004 (Pen Code, 496, subd. (a), count three). Appellant pled guilty to possession of a controlled substance on September 12, 2004 (Health & Saf. Code, 11377, subd. (a), count five). Counts two and four were dismissed.
After independent review of the record, Court have concluded there are no reasonably arguable legal or factual arguments. The judgment is affirmed.

On July 31, 2005, appellant Oscar Aguilar fatally shot Ramon Ceballos after they exchanged words in a parking lot. Appellant was charged and convicted of first degree murder, with the special allegation found that he personally and intentionally discharged a handgun that proximately caused great bodily injury or death (Pen. Code, 12022.53, subd. (d)). He was sentenced to 25 years to life for first degree murder, with a consecutive term of 25 years to life for the special allegation. On appeal, he contends the consecutive indeterminate term must be stricken. Court affirm.

Lenore Albert appeals from a judgment in favor of The Education Resources Institute (TERI), Creditor Iustus et Remedium, LLP (CIR), and Equifax Information Services, LLC (Equifax), in this action involving TERIs attempts to collect on Alberts three defaulted law school student loans. TERI filed the instant action to collect on the loans. Largely contending the student loans were discharged by her bankruptcy, Albert cross complained against TERI and its attorney/debt collection service, CIR, and Equifax, alleging violations of the Consumer Credit Reporting Agencies Act (Civ. Code, 1785.1 et seq. (CCRAA)), and various common law torts. She raises numerous contentions on appeal, none of which have merit. Court order the judgment modified to more accurately reflect the actual amount awarded TERI and in all other respects affirm.

The plaintiffs in this action, SPM, Inc., KPOD, Ltd., KAC, Inc., M&B Partners, Irenemarie Kennedy, and John F. Kennedy (hereafter, collectively the Appellants), are all affiliated with or related to an individual named Sailor J. Kennedy. The defendant, Berger Kahn, is a law corporation, which has a $355,000 judgment against Sailor Kennedy and one of his companies, Kennecorp Mortgage Brokers, Inc. (Kennecorp), for unpaid legal fees. In accordance with Code of Civil Procedure section 708.410, Berger Kahn filed a notice of judgment lien in an unrelated pending lawsuit in which the Appellants and Kennecorp were plaintiffs. When the existence of Berger Kahns lien caused a hoped for settlement to unravel, the Appellants sued Berger Kahn for negligent and intentional interference with prospective economic advantage. The trial court granted Berger Kahns special motion to strike the complaint as a strategic lawsuit against public participation, i.e., SLAPP suit ( 425.16). On appeal, the Appellants contend their action was not properly subject to an anti SLAPP motion and they presented sufficient evidence they had a probability of prevailing. Court reject their contentions and affirm the judgment.