CA Unpub Decisions

Plaintiffs appeal from a judgment in favor of defendants Stewart Title of California, Inc. (Stewart Title), and Pacifica REO, LLC (Pacifica). The Smiths also appeal from the courts postjudgment orders awarding attorney fees to Stewart Title and Pacifica. The Smiths (real estate purchasers) sued the seller, Pacifica, for fraud, and the escrow company, Stewart Title, for negligence and breach of fiduciary duty, asserting they (the Smiths) intended to acquire two buildable lots, but were conveyed one lot with two assessor parcel numbers. On appeal the Smiths challenge several evidentiary rulings as well as the attorney fee orders. Court affirm the judgment and the postjudgment orders.

Plaintiff appeals from a judgment confirming an award of arbitration after she moved to vacate it because the arbitrator was biased and failed to make required disclosures. Court conclude there was no actual or apparent bias on the part of the arbitrator nor improper conduct in accepting a new matter with counsel in the pending arbitration and affirm.

Defendant challenges his conviction for possession for sale of a controlled substance and possession of marijuana. He contends the court wrongly denied his motion to suppress the evidence related to the drugs because the police acquired the evidence as the result of an illegal detention. Court agree. The officer detained defendant because he suspected defendant was illegally drinking alcohol in a public place, but the suspicion was unreasonable. Defendant was detained inside his gated apartment complex, which was not readily accessible to the public. Thus, the officer lacked reasonable suspicion defendant was drinking alcohol in a public place. Court reverse and remand with directions for the court to grant defendants motion.

In this legal malpractice action, the defendants default was entered by the clerk based on a declaration by the plaintiffs attorney that the answer was deemed stricken for violation of a discovery order. The trial court thereafter refused to set aside the default. As we explain, the default and the ensuing default judgment are void. Court therefore reverse the judgment, with instructions to the trial court to reinstate the defendants answer.

The plaintiff in this civil action sued a corporation and its president, asserting breach of contract and fraud. The defendants responded with answers and a cross-complaint. Thereafter, at the plaintiffs behest, the trial court struck the answers of both defendants, and it entered their defaults. The court first struck the corporate defendants answer because the defense attorney withdrew, leaving the corporation unrepresented. A month later, the court struck the individual defendants answer after he failed to attend a case management conference. After refusing to set aside the defaults, the court eventually struck the cross complaint and entered judgments against both defendants.
The individual defendant appeals, arguing that the trial court abused its discretion. For reasons explained below, Court agree that the judgment against him must be reversed.

At issue in this case is whether petitioner BranDee Tripp is entitled to a parole release date. She is currently in prison because, on July 8, 1979, 10 year old Tameron Carpenter was strangled to death by Hilton Tripp and Randy Cook. At the time, petitioner, born in March 1959, was Hiltons wife and the mother of his child. In February 1981, petitioner was convicted by guilty plea of second degree murder and was sentenced to prison for 15 years to life. (Pen. Code, 187.) Under the plea agreement, other charges were dismissed, and petitioner agreed to testify against the man who solicited this murder, William Record, petitioners stepfather.
After a hearing on May 17, 2004, Californias Board of Prison Terms determined that petitioner, then age 45, was entitled to a parole date, as she is suitable for parole and would not pose an unreasonable risk of danger to society or a threat to public safety if released from prison. The Board had previously found petitioner suitable for parole after a hearing on November 6, 2002, and that decision was reversed on April 4, 2003, by Governor Davis.
The overarching concern of the Board in granting a prisoner a parole release date is whether consideration of the public safety requires a more lengthy period of incarceration for this individual. ( 3041, subd. (b).) A parole date should be denied if the prisoner will pose an unreasonable risk of danger to society if released from prison (Cal. Code Regs., tit. 15, 2402(a)),[4] in other words, if the prisoner is a continuing danger to the public. (In re Dannenberg (2005) 34 Cal.4th 1061, 1084) (Dannenberg).) Governor reviewed the May 2004 grant of a parole date and, on October 14, 2004, reversed it, asserting his belief that petitioner would pose an unreasonable threat to public safety if released from prison at this time.
Petitioner has challenged the Governors decision by a habeas corpus petition, which the Monterey County Superior Court denied in September 2005. In August 2006, this court issued an order to show cause asking the parties to further discuss whether some evidence supports the Governors determination that petitioner poses an unreasonable threat to public safety considering her actual role in the murder and her progress in prison. After reviewing the administrative record under a deferential standard, Court conclude that there is some evidence supporting the Governors decision and deny the habeas petition.

Defendant was convicted of second degree robbery after a court trial, based on the finding that he stole a beer from a liquor store and used force to effect his escape. This court reversed the judgment and remanded the case for the purpose of allowing the trial court to exercise its discretion on defendant's motion to represent himself in a motion for a new trial or sentencing. In this second appeal, defendant contends that the trial court again erred, this time by failing to inquire whether the parties desired a new probation report or whether defendant wished the court to view a videotape of the alleged crime. Defendant further challenges the earlier waiver of his right to a jury trial. Addressing the re-sentencing proceeding, defendant asserts ex post facto violations in the court's order that he undergo fingerprinting and DNA sampling for the state's DNA database under Penal Code section 296. Defendant also calls attention to an inadvertent failure to order an amended abstract deleting reference to a stricken prison prior. Court modify the judgment and otherwise affirm.

Defendant was charged by information with second degree robbery (Pen. Code, 211 212.5, subd. (c)), receiving stolen property (Pen. Code, 496, subd. (a)), and using a stolen access card, a misdemeanor (Pen. Code, 484g, subd. (a) 488). On December 13, 2005, the jury found defendant not guilty of robbery and guilty of the two remaining counts. The court found true the allegations of two prior convictions. On March 24, 2006, the trial court sentenced defendant under the Three Strikes law to 25 years to life for receiving stolen property and to a concurrent term of six months for the misdemeanor use of a stolen credit card. On appeal, defendant claims the court (1) erred in instructing the jury, pursuant to CALJIC No. 2.15, that it could infer guilt from possession of stolen property and slight corroborating evidence; (2) abused its discretion by allowing the use of five prior convictions to impeach defendant; and (3) erred in failing to stay the concurrent sentence for the misdemeanor count pursuant to section 654. Court find no error and affirm the judgment.

Appellant Roland Smittick sued respondents the Santa Clara County Office of Education (SCCOE), David Wong, and Eleanor Wiener (hereafter collectively Defendants) for constructive termination. The case went to judicial arbitration and the arbitrator found for Defendants. Smittick appeals the judgment entered on the arbitration award. Since the judgment is not appealable, Court dismiss Smitticks appeal. Court also conclude that Smittick has waived any argument on appeal due to defects in his briefs.

A modification decision.

This is an appeal from an order issued May 9, 2005 to distribute funds held in escrow after the termination of a receivership involving the real property of Benjamin Rogers (May 2005 Order). Although far from clear from its poorly drafted briefs, appellant Alton Management Corporation, the receiver of Rogerss property, asks this court to vacate the May 2005 Order on the grounds that (1) a final order that issued on February 13, 2004, decided the same issues in a different way, and thus is res judicata with respect to those issues; and (2) the May 2005 Order was obtained by fraud or mistake in that Rogerss attorney represented Rogers in opposing reconsideration of the order after Rogers died on May 17, 2005, but before notifying the trial court of his death. Court affirm.

Janice Anderson Santos appeals the dismissal of her claims for employment discrimination, harassment, and retaliation, after the court granted summary judgment in favor of her employer, the City and County of San Francisco (the City), and her work supervisor, Trent Rhorer. Appellant argues that each of her claims presented triable issues of material fact. Court disagree and affirm.

Plaintiff and appellant California Correctional Peace Officers Association (CCPOA) appeals entry of judgment in favor of the State of California (State), the California Youth and Adult Corrections Agency (YACA), the California Department of Corrections (CDC) and Steve Westly, State Controller, sued in his representative capacity (collectively respondents). The trial court granted respondents motion for judgment on the pleadings without leave to amend. Court affirm.

Appellant Rodney R. appeals from the juvenile courts rulings on a supplemental petition brought pursuant to Welfare and Institutions Code section 387[1] by the San Francisco Department of Human Services (Department). Rodney R. contends reversal is necessary because of the courts failure to consider placing the subject minor, X.C., with him, a noncustodial parent, pursuant to section 361.2, subdivision (a) before removing X.C. from his mothers physical custody and placing him in foster care. Court affirm.