CA Unpub Decisions

R.A. Atlas Corporation, Inc. (Atlas) and Erik Rothenberg (Rothenberg) challenge a default judgment entered against them and in favor of respondent Heather Arnold (Arnold). Because Atlas never filed a notice of appeal from the judgment, Court dismiss its purported appeal. As for Rothenberg, we conclude that Arnold properly served the summons and first amended complaint upon him. Accordingly, Court affirm the judgment.

Defendant Miguel Edward Mayzes pleaded guilty to inflicting corporal injury on his spouse. Although the probation department recommended probation, the trial court sentenced him to the upper term of four years in state prison. Defendant contends that in so doing the trial court violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and also improperly relied on uncharged offenses and elements of the underlying offense. Here, in our fourth opinion in this case, Court again hold as we did in our first opinion, that the trial courts sentence of defendant to the upper term did violate Blakely. Court thus remand with directions to the trial court to reconsider defendants sentence.

Following his conviction by a jury of (1) first degree robbery, (2) aggravated assault and (3) false imprisonment by violence, with findings that appellant personally inflicted great bodily injury upon the victim during the commission of each of the above offenses, appellant Tristan Vanrenslaar Harvey was sentenced to nine years in prison. He appeals, charging evidentiary and instructional errors. Court affirm.

Good fences may make good neighbors, but retaining walls do not, at least when they are constructed in a location that does not conform to the common property line. In these consolidated appeals, we consider various procedural issues arising after the entry of a stipulated judgment in favor of plaintiff Louis Ratto against defendant Ki O. Son. Ratto contends: (1) the trial court erred when it set aside the stipulated judgment for the limited purpose of allowing Son to file a cross-complaint; (2) the trial court should have awarded Ratto attorneys fees as a prevailing party on a motion to enforce the settlement agreement underlying the judgment; (3) the court erred when it ordered Ratto to file an acknowledgment of satisfaction of judgment after the monetary portion of the judgment had been paid, but before the injunctive relief provided for had been accomplished; and (4) the court should have granted a motion to strike Sons third amended cross complaint as a strategic lawsuit against public participation (SLAPP) under Code of Civil Procedure section 425.16. Court agree with the first two contentions.

Claude Daniel Jackson appeals from a judgment revoking his probation and imposing an upper-term state prison sentence based on his negotiated plea of no contest to the commission of a lewd act on a child. (Pen. Code, 288, subd. (a).) Appellant claims the judgment must be reversed because (1) the condition of probation he was found to have violatedthat he not possess pornographic materialsis constitutionally and otherwise invalid, and (2) the imposition of an upper term violated his constitutional rights under Cunningham v. California (Jan. 22, 2007) U.S., 2007 WL 135687 (Cunningham).
After finding that appellant did not waive his right to challenge the probation condition, and did not need to obtain a certificate of probable cause pursuant to section 1237.5 in order to challenge the condition, Court conclude that the trial court that sentenced appellant four years ago failed to make the requisite case specific exercise of discretion as to whether the condition is reasonably related to his offense or to his future criminality, rendering it unnecessary to determine the constitutionality of that condition.

Defendant Michael Roberts appeals his conviction by jury trial of resisting an executive officer (Pen. Code, 69). The trial court sentenced defendant to three years in state prison to be served consecutive to the sentence he was currently serving. Defendant raises numerous claims of error on appeal. Court agree with defendant that his sentence must be vacated, but reject his other contentions.

Defendants successfully moved to exclude attorney client communications from evidence in a wrongful termination action. When the plaintiff admitted he had no other evidence to prove his case, the court dismissed the action. Plaintiff challenges the exclusion of the evidence, arguing the communications were not privileged, any privilege was waived by defendants failure to object to their disclosure, and the crime fraud exception to the privilege applied. Court affirm.

Tosoh SET (Tosoh) appeals from a summary judgment entered in favor of its insurance carrier, Hartford Fire Insurance Company (Hartford), in an action for breach of Hartfords duty to defend Tosoh against a complaint filed by one of Tosohs competitors. Whether Hartford owed Tosoh a duty to defend turns upon whether the advertising injury coverage of the Hartford insurance policies provides coverage for an advertisement that disparages a competitors products or services by inference, without specifically naming the competitor. Court conclude Hartfords duty to defend was triggered by an allegation that Tosoh falsely claimed it alone had developed the detailed specifications and tolerances required for certain replacement component parts used in semiconductor manufacturing equipment, a statement that disparaged its competitors products and services by implying they were measurably inferior. Accordingly, Court reverse the judgment.

In this consolidated appeal, plaintiffs Joe Bob Schmidt and Kathleen Ann Dudgeon appeal from adverse judgments entered on their complaints against defendants Allstate Insurance Company and Allstate Indemnity Company (collectively Allstate). Schmidt also appeals from an adverse judgment on his complaint against defendants Anthony J. Allard and the law firm of Bennett, Samuelsen, Reynolds & Allard (collectively Allard). Allstate provided coverage for appellants, and Allard represented Schmidt, in an earlier personal injury action against Schmidt and Dudgeon. However, Allstate refused to provide coverage when the injured party filed a second action alleging that Schmidt and Dudgeon had fraudulently induced him to settle the personal injury claim by hiding assets and misrepresenting Schmidts financial condition. Court conclude that the trial court properly rejected all of appellants claims and affirm the judgment.

Following a court determination that she was not guilty by reason of insanity on two felony charges, Sunni Gayle Harris (appellant) was committed to a state hospital and then placed on outpatient status. She appeals an order revoking that status and recommitting her to Napa State Hospital (NSH) pursuant to Penal Code section 1609, contending that section violates substantive due process because it permits the revocation of outpatient status without a finding that the person presents a danger to others as a result of a current mental defect or disease. She also contends there was no substantial evidence that she posed a danger to others while on outpatient status. Court reject her contentions and affirm.

Plaintiff Steve Akopyan was injured in an accident that occurred while he was driving a truck for hire. He brought suit against the owner of the truck for breach of contract and personal injury. Nearly three years after the original complaint was filed, plaintiff served M & A Trailer Repair, Inc., M & A Trailer Repair, a General Partnership, and Martin Sandoval, dba M & A Trailer Repair (collectively, M & A) with amendments to the complaint naming them in place of three Doe defendants. Court affirm the trial court order quashing service and dismissing the action against M & A on the grounds of inexcusable delay. (See Code of Civil Procedure, 583.110 et seq.)

Boat and Motor Mart appeals from a judgment entered against it for breach of express and implied warranties under the Song-Beverly Consumer Warranty Act (the Act) (Civ. Code, 1790 et seq.) in connection with its sale of a boat to James and Diane Townsend (the Townsends). Boat and Motor Mart contends: (1) the trial court erred in awarding the Townsends a refund of the purchase price as well as allowing them to keep the boat; (2) the court should have required the Townsends to elect between remedies for express warranty and implied warranty; (3) Boat and Motor Mart was not liable for breach of express warranty, because it did not give an express warranty and because the Townsends did not allow a reasonable opportunity for repairs to be made; (4) there was no breach of any implied warranty because the boat did not actually malfunction; (5) the jurys award of incidental damages was not supported by the evidence; and (6) Boat and Motor Mart was the prevailing party on the Townsends breach of contract cause of action and, despite losing on the warranty claims, was entitled to recover its attorney fees and costs as the prevailing party under section 1717. The Townsends oppose these contentions and, in their cross appeal, argue that the trial court should have awarded them damages for breach of implied warranties as well as for breach of express warranty.
Court conclude that the Townsends were not entitled to relief under an express warranty theory, but they are entitled to the damages awarded by the jury for breach of implied warranties. Court further conclude that the trial court did not err in denying Boat and Motor Marts request for attorney fees. Because these rulings resolve the matter, it is unnecessary to decide the other issues raised by the parties. The judgment will be vacated and remanded for entry of a new judgment consistent with this opinion.

In this appeal and consolidated writ petition, a paternal aunt who for nearly four years was the caretaker of two dependent children challenges the trial courts finding that she was not their prospective adoptive parent for purposes of Welfare and Institutions Code section 366.26, subdivision (n)(1).[1] Appellant Jackie B. argues insufficient evidence supports this finding, and she claims the court abused its discretion and denied her due process by considering extraneous circumstances and the best interests of the children without allowing her an opportunity to be heard. Court agree the court abused its discretion by conflating a best interests inquiry with the threshold question of whether Jackie was a prospective adoptive parent entitled to a hearing on best interests under section 366.26, subdivision (n). Because this error was prejudicial, Court reverse and remand for further proceedings.

Plaintiff and appellant Great American Insurance Company of New York (Great American) appeals a summary judgment in favor of defendant and respondent Fidelity and Guaranty Insurance Company (Fidelity) in Great Americans action for equitable subrogation. Great American contends the trial court erred in concluding that an indemnity agreement between the parties insureds precluded Great American from recovering settlement monies it paid on behalf of Fidelitys insured.