CA Unpub Decisions

S.P. (Mother) has a history of abusing drugs, failing to provide for her children’s needs and leaving the children unattended that led to the San Bernardino County Department of Children and Family Services (CFS) removing her five children from her home. Mother’s reunification services were terminated and a Welfare and Institutions Code section 366.26 hearing was set. About five months later, Mother filed a section 388 petition, which was summarily denied. Mother appeals from the juvenile court’s order denying her second section 388 petition without a hearing.
On appeal, Mother argues the juvenile court erred in summarily denying her second section 388 petition without a hearing because she had established prima facie evidence of changed circumstances and granting the petition was in the children’s best interest. Finding no error, we affirm the order denying Mother’s section 388 petition.

Defendant and appellant Jose Valdez physically abused his girlfriend’s 11-month-old daughter resulting in 14 broken bones to her extremities. Pursuant to a plea agreement, defendant pled no contest to felony child abuse (Pen. Code, § 273a, subd. (a)). He also admitted that in the commission of the offense, he personally inflicted great bodily injury on a child under five years old. (§ 12022.7, subd. (d)). In return, the trial court suspended imposition of sentence, and placed defendant on formal probation for a period of 48 months subject to various terms and conditions of probation. Defendant subsequently violated several of his probationary terms and conditions. Following a hearing, the trial court found defendant in violation of his probation, and sentenced him to six years in state prison with 365 days of credit for time served.

Defendant Pinnacle Plastering, Inc. (Pinnacle) appeals a trial court order denying its petition to compel arbitration of a dispute with a former employee. The employee, Asdel Castro, sought to enforce the Labor Code on behalf of the State of California under the Private Attorneys General Act of 2004 (PAGA), Labor Code section 2698 et seq. The trial court held the Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) required it to refuse to enforce arbitration.
Pinnacle argues the trial court erred because (i) Castro’s complaint includes individual claims that are subject to arbitration under Iskanian and (ii) Iskanian bars waiver of representative PAGA claims, but not their arbitration. We affirm because Castro’s complaint states only a representative PAGA claim and private parties to a predispute arbitration agreement cannot agree to arbitrate a representative PAGA claim because the state is the real party in interest.

The juvenile court found true an allegation that Fernando S. committed robbery (Pen. Code, § 211). The court declared Fernando a ward of the court and imposed probation. On appeal, Fernando contends the dispositional order should be reversed because police violated Miranda by failing to inform him of his right to appointed counsel before and during police questioning. Concluding that the police properly admonished Fernando, we affirm.

Jose Luis Valdez is currently serving a state prison sentence for life without the possibility of parole. He wishes to visit his minor children, including 15-year-old C. and 9-year-old J. Valdez filed a petition for writ of habeas corpus to challenge restrictions on minor visitation imposed by the California Department of Corrections and Rehabilitation (CDCR). He argues he was not arrested, convicted of, or sentenced on an enumerated offense against a "minor" or "child" when he choked his pregnant girlfriend in 2009. Consequently, he claims the restrictions are invalid under section 3173.1 of title 15 of the California Code of Regulations (regulation 3173.1). We agree with Valdez and grant the requested relief. Contrary to respondent CDCR's claim, the petition is not moot or invalidated by a failure to exhaust administrative remedies.

Plaintiffs and appellants Carolann McCaa and David McCaa (the McCaas or Plaintiffs) are homeowners who have sued defendant and respondent Ocwen Loan Servicing LLC (Ocwen), their former mortgage loan servicer, on breach of contract and misrepresentation theories. During the period that Ocwen serviced their loan, the McCaas applied for a loan modification that Ocwen never completed, before it was required to transfer the account to a successor loan servicer. The McCaas allege they sustained damages in connection with the Ocwen failed application, although they ultimately obtained a different loan modification from one of the successor loan servicers. (West v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 796-799 (West) [loan modification trial payment plan constitutes an enforceable contract, when HAMP terms apply and are considered]; Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 68-69 (Lueras) [although ordinary negligence cause of action did not lie aga

Plaintiffs and appellants Jamie L. Etcheson and Kelly M. Etcheson brought an action under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq., commonly known as the "lemon law," hereafter the Act) against defendant and respondent FCA US LLC (FCA) after experiencing problems with a vehicle they had purchased new for about $40,000. After admitting the vehicle qualified for repurchase under the Act, FCA made two offers to compromise under Code of Civil Procedure section 998 (section 998): one in March 2015, to which plaintiffs objected and the trial court found was impermissibly vague, and a second in June 2016, offering to pay plaintiffs $65,000 in exchange for the vehicle's return. Following the second offer, the parties negotiated a settlement in which FCA agreed to pay plaintiffs $76,000 and deem them the prevailing parties for purposes of seeking an award of attorney fees.

Protech Services, Inc., sued its former chief financial officer (CFO) James Gillette, in both his individual capacity and as trustee of a family trust that had invested in Protech. The lawsuit made various claims, including breach of fiduciary duty, breach of loyalty, fraud and concealment, and conversion. Protech alleged Gillette deliberately reduced cash receipts and profits, embezzled money, overstated business expenses, and misrepresented Protech’s financial position to the Board of Directors in a plan to take over the company.

Petitioner, the father of 12-year-old K.D., a dependent of the juvenile court, has filed a writ petition challenging the juvenile court’s ruling at the six-month review hearing terminating reunification services and setting a hearing under Welfare and Institutions Code section 366.26. We agree with father that the juvenile court erred in denying him a contested hearing, and therefore grant the petition.

Stephen William Brewster assaulted his mother and later, while in jail, attempted to persuade her to recant her statements to police. He was convicted of assault and of dissuading a victim from prosecuting a crime. Brewster appeals from the judgment of conviction for dissuasion, contending insufficient evidence supports the jury’s finding of specific intent because when he urged his mother to recant her complaint he meant not to interfere with the police investigation but merely to encourage her to tell the truth—that no crime had been committed.
We affirm the judgment. When a perpetrator attempts to persuade his victim to change her story in a manner that will exonerate him, a jury’s finding that he committed the crime necessarily means his design to influence the victim was corrupt.

Defendant Alejandro Ernesto Hernandez-Delgado appeals after a jury convicted him of first degree murder (Pen. Code, § 187, subd. (a)) and found true gang and firearm allegations. The trial court sentenced defendant to an indeterminate prison term of 50 years to life.
On appeal, defendant challenges the sufficiency of the evidence supporting the gang allegation, and he contends the trial court erred by: (1) admitting evidence from Facebook; (2) improperly instructing the jury regarding the gang allegation; (3) permitting further argument about accomplice testimony during jury deliberations; (4) refusing a juror’s request to be discharged; and (5) denying defendant’s motion for a new trial, which was based on an allegation of jury misconduct. Defendant also contends the cumulative effect of the errors warrants reversal of the judgment, and that his case should be remanded for resentencing so the trial court can exercise its discretion to strike the firearm enhancement.

E.O. (mother) appeals from a February 2016 order granting the application of respondent M.Y. (father) for renewal of a restraining order issued under the Domestic Violence Prevention Act (DVPA). (See Fam. Code, § 6200 et seq.)
The February 2016 order renewed a restraining order that had been issued in March 2015. The March 2015 restraining order contained personal conduct, no-contact, and stay-away orders, and it ordered mother to move out of the family home. At the time the March 2015 restraining order was issued, the court had already granted father sole legal and physical custody of the parties’ children. In issuing the March 2015 restraining order, the trial court found that there had been no rebuttal of the section 3044 presumption against an award of sole or joint physical or legal custody of the children to a person who has perpetrated domestic violence.

Defendant James Francis Lee was driving his pickup truck south on Highway 101 when he rear-ended the pickup truck of a family that had parked on the shoulder. Four-year-old Jose Diaz was killed, and the family’s father suffered serious injuries. Lee’s blood alcohol level tested at 0.175 percent and 0.16 percent. He had suffered two prior drunk driving convictions in 1988 and 1994.
A jury found Lee guilty of second degree murder, gross vehicular manslaughter, driving under the influence of alcohol and causing injury, and driving with a blood alcohol level of 0.08 percent and causing injury. The jury found various enhancements true, including allegations that Lee had suffered two prior drunk driving convictions within seven years of each other. The trial court imposed a total term of 15 years to life consecutive to four years four months in state prison.

Laguna Dana Investments, LLC (Laguna Dana) appeals from a postjudgment order granting Sirous P.A. Ghasemian’s motion to set aside an April 11, 2013, judgment (judgment) as void. The trial court determined “the court did not have the power to enter default or default judgment against Ghasemian when she failed to appear for trial . . . .” Laguna Dana contends the judgment was not void on its face. Ghasemian disputes Laguna Dana’s claims and filed a motion to dismiss the appeal. Ghasemian argues our prior opinion in Laguna Dana Investments, LLC v. Sirous & Sons Rug Gallery, Inc. (Mar. 17, 2014, G048254) [nonpub. opn.] (Laguna Dana I) determined the judgment against Ghasemian was a default. We disagree. The motion to dismiss is denied. The order vacating the judgment is reversed and remanded.