CA Unpub Decisions

In this child custody dispute, petitioner Ginger Howse appeals from the trial courts award of $3,500 in attorney fee sanctions to her former husband Marc. She contends the sanction was unjustified by the facts and uninformed by any consideration of the parties relative financial statements. Court agree only with the second contention, and order the matter remanded for the trial court to follow the mandate of Family Code section 271, subdivision (2), that it take into consideration all evidence concerning the parties incomes, assets, and liabilities and consider whether imposing a sanction would impose an unreasonable financial burden.

Plaintiff Louis Francis is a prison inmate who claims he was injured when Governor Arnold Schwarzenegger urged the electorate in the fall of 2004 to vote no on Proposition 66 because it will . . . Release 26,000 prisoners. The trial court found Francis failed to allege facts sufficient to state a cause of action against the Governor, and sustained Schwarzeneggers demurrer to the first amended complaint without leave to amend.
Francis contends on appeal that the court erred in sustaining the demurrer and erred in conducting oral argument after he waived his personal appearance at the hearing.
Neither contention has merit. Court affirm the judgment.

In this workers compensation matter, the employer, the Elk Grove Unified School District (District), petitioned for writ of review of a decision of the Workers Compensation Appeals Board (WCAB). The WCAB found that District had engaged in serious and willful misconduct toward its injured employee, teacher Janet Stroth (Stroth), by failing to permanently remove a physically and verbally aggressive student from Stroths fifth grade classroom. (Lab. Code, 4553 [increasing the amount of compensation by one-half if employer engages in serious and willful misconduct].) Court issued the writ of review. Court now annul the award against District for serious and willful misconduct. Court conclude that District did not deliberately fail to take action for Stroths safety.

Appellant, the mother of A.S. and H.F. (the minors), appeals from the order of the juvenile court terminating her parental rights. (Welf. & Inst. Code, 366.26, 395.) Appellant contends the juvenile court and the Calaveras County Works and Human Services Agency (HSA) failed to comply with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 1901 et seq.) by failing to adequately inquire into the minors Indian heritage. Court affirm.

Defendant Johnny E. Caro appeals from a judgment entered following jury convictions for robbery (Pen. Code, 211) and attempting to dissuade a witness from reporting a crime ( 136.1, subd. (b)(1)). In a bifurcated trial, Caro admitted that he had one prior strike conviction ( 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), one prior serious felony conviction ( 667, subd. (a)(1)), and three prior probation convictions ( 1203, subd. (e)(4)). The court sentenced Caro to an aggregate prison term of 12 years and four months.
Caro contends there was insufficient evidence identifying him as the person who committed the robbery and attempted to dissuade a witness. Court conclude the jury's findings were based on substantial evidence and affirm the judgment.

Elena G. appeals the court's determination at a post permanency planning review hearing not to return her son, T.S., to her home. She contends T.S. failed to receive notice as required by law and the court failed to inquire as to why he was absent at the hearing. Court affirm the order.

Appellant has not articulated any theories attempting to show that the denial order was erroneous. Thus, even if this court had jurisdiction to review it, this appeal should be dismissed as frivolous. (9 Witkin, Cal. Proc. (4th ed.) Appeal, 640.)

Appellant James Ray Brown was convicted after jury trial of discharging a firearm at an occupied motor vehicle (count 1) and of assault with a firearm (count 2). (Pen. Code, 246; 245, subd. (a)(2).) Street gang enhancements that were attached to both counts and a personal firearm use allegation that was attached to count 2 were found true. ( 186.22, subd. (b)(1); 12022.5, subd. (a)(1).) He was sentenced to 15 years to life imprisonment for count 1; the sentence imposed for count 2 was stayed pursuant to section 654.
Appellant challenges the sufficiency of the evidence proving that the offenses were committed with the specific intent to promote, further or assist in criminal conduct by gang members. He also contends that he was denied the right to a unanimous jury verdict on count 2. Neither argument is persuasive; Court affirm.

Appellant, Michael D. Russell, in his capacity as trustee of the Joseph Alexander Blain Trust (Trust), was granted broad management discretion through an amendment to the Trust. Shortly after his appointment as trustee, appellant lost substantially all of the Trusts cash by investing it in an oil lease in the late 1980s.
Approximately 15 years later, respondent Jerold Blain, one of the Trust beneficiaries, petitioned to remove appellant as trustee, to obtain an accounting, and to surcharge appellant. Following a court trial, judgment was entered in respondents favor. In making its ruling, the court determined that the Trust amendment was invalid. Appellant contends the trial court made numerous evidentiary and procedural errors. According to appellant, respondent presented improper material to the court, including posttrial exhibits. Appellant further argues that the issue of the validity of the Trust amendment was not properly before the court and that the evidence does not support the finding that this amendment was invalid. Additionally, appellant contends that damages were incorrectly calculated. As discussed below, the trial courts liability findings are supported by the record and the alleged procedural errors are harmless. However, the courts improper consideration of posttrial exhibits requires reversal of the damage award.

In this dependency proceeding, Crystal L. (mother) appeals orders denying her modification petition under Welfare and Institutions Code section 388. Court find no abuse of discretion and affirm.

Robert H. appeals from orders terminating his parental rights (Welf. & Inst. Code, 366.26) to his three young children. He contends the court erred at an earlier stage of the dependency proceedings when it ruled the Indian Child Welfare Act (25 U.S.C. 1901 et seq. (ICWA)) did not apply. He also claims the court should have found termination of his rights would be detrimental to the children based on their parent/child relationship ( 366.26, subd. (c)(1)(A)). On review, Court disagree with appellant and affirm.

Linda H. appeals from orders terminating her parental rights (Welf. & Inst. Code, 366.26) to her three young children. She challenges the courts finding that it was likely the children would be adopted because adoption assessments in their cases failed to address the nature of their sibling bond with her older children. On review, Court affirm.

Genny Alberts and American Development Company filed complaints against M. Hank Etess and others for malicious prosecution, and obtained default judgments against Etess for $132,779. After more than 6 months had passed, Etess moved to set aside the default judgment, claiming the plaintiffs failed to serve a statement of damages and service of the summons and complaint was defective. The trial court granted Etesss motion. Subsequently, Alberts and ADC filed a motion for new trial, seeking to set aside the order setting aside the default on the grounds that the trial court had no power to change a default judgment after it became final. The trial court granted the motion, and Etess appeals. Court affirm.

Following the denial of their motions to suppress (Pen. Code, 1538.5), appellants Victor Hugo Castro and Felipe Cisneros pled guilty to various drug charges. They contend their motions were improperly denied, and Cisneros contends the trial court erred by hearing Castros motion in his absence. Court reject these contentions and affirm the judgment.