CA Unpub Decisions

Court conclude that the trial court erred in denying Cates and Ellis leave to amend to add a section 1102.5 cause of action and summarily adjudicating the discrimination and failure to prevent discrimination causes of action asserted by Cates, Ellis and Heintz and the retaliation and aiding and abetting retaliation claims by Cates. Accordingly, court reverse the judgments as to those rulings. In all other respects, court affirm the judgments because the Plaintiffs waived their challenge to the trial court's partial denial of their discovery motion by failing to produce an adequate record to permit appellate review and the Defendants have established their entitlement to summary adjudication of Broach's discrimination and failure to prevent discrimination claims and Ellis's retaliation and aiding and abetting retaliation claims.

Appellant was charged with possession for sale of a controlled substance in violation of Health and Safety Code section 11378 and transportation of a controlled substance in violation of Health and Safety Code section 11379, subdivision (a). As to each charged offense it was further alleged that at the time they were committed, appellant was on bail on three previous cases in violation of Penal Code section 12022.1.
Appellant's motion to suppress was denied. He then entered a plea of nolo contendere to the substantive offenses and admitted the special allegations. Probation was denied and appellant was sentenced to the midterm of three years in prison on the charge of transporting a controlled substance. A three-year sentence imposed for sale of a controlled substance was stayed pursuant to Penal Code section 654. Additional two year sentences imposed on the bail enhancements were also stayed and later were dismissed pursuant to negotiated dispositions in two other cases.
A timely notice of appeal was filed.
On appeal, the record of evidence presented to this court was by way of a settled statement because neither the recording nor the transcript of appellant's suppression motion could be located. We concluded the appellate record was insufficient and incomplete and directed the court and parties to present a new settled statement. On October 6, 2006, a hearing was held. At that time witnesses previously examined at the May 23, 2005, suppression hearing were recalled for the purpose of refreshing the trial court's recollection concerning the evidence presented at that hearing. The parties thereafter submitted a "Settled Statement and Amendment to Settled Statement" and filed supplemental briefs.

Based on three incidents involving three different victims over the course of approximately two months, a jury convicted Domenico G. Diaz of four counts of forcible lewd conduct with a child under 14 (Pen. Code, 288, subd. (b)(1) (hereafter 288(b)(1)) (counts 1, 2, 3, 6)), two counts of kidnapping ( 207, subd. (a) (counts 4, 7)), one count of making criminal threats ( 422 (count 5)), one count of kidnapping for rape ( 209, subd. (b)(1) (count 8)), and one count of assault with the intent to commit rape ( 220 (count 9)). The trial court sentenced Diaz to three consecutive life terms.
Diaz challenges the sufficiency of the evidence to support his conviction for count 6. Diaz contends that the record contains insufficient evidence that he used force, duress or menace to commit the lewd act against the victim at issue in count 6. As we will explain, court conclude that substantial evidence supports a finding that Diaz committed the offense at issue in count 6 by use of duress. Accordingly, court affirm.

Plaintiff Insurance Company of the West (ICW) appeals an order granting the motions of defendants Davis Smith and Don Colton to quash service of summons on the ground the trial court lacks personal jurisdiction over them. Court affirm the order.

Pursuant to a statutory procedure known as the "administrative per se" law (Veh. Code, 13353.2 et seq.), the Department of Motor Vehicles (DMV) suspended Jason Hillyard's driver's license after he was arrested for driving under the influence of alcohol ( 23152). At an administrative hearing, the DMV offered in evidence both the arresting officer's sworn statement ( 13380, subd. (a)) and the police report from the incident. An administrative hearing officer concluded that Hillyard's arrest was lawful and upheld the suspension.
Hillyard filed a petition for writ of mandate in the trial court in which he sought the reinstatement of his driving privileges. In his memorandum in support of his petition, Hillyard claimed that the administrative hearing officer erred in admitting the police report in evidence. Hillyard further argued that without the police report, the weight of the evidence did not support the hearing officer's determination that Hillyard had been lawfully arrested.
The trial court determined that the administrative hearing officer had improperly admitted the police report in evidence. The trial court further concluded that without the police report, the DMV had failed to prove that Hillyard's arrest was lawful. The trial court entered a judgment granting Hillyard's petition.
On appeal, the DMV claims that information contained in the arresting officer's sworn statement was sufficient to establish that Hillyard's arrest was lawful. In addition, the DMV claims that the trial court erred in excluding the police report. Court conclude that the undisputed facts contained in the arresting officer's sworn statement establish that Hillyard's arrest was lawful. Accordingly, court reverse the judgment and remand the matter to the trial court with directions to deny Hillyard's petition for writ of mandate.

Cross complainants Raul and Maria Ulloa appeal a judgment entered against them on their cross-complaint in an action against them for specific performance of a real estate sales contract. The Ulloas contend the trial court abused its discretion by granting the motions in limine of cross defendants McMillin Real Estate and Mortgage, Inc. (McMillin), dba Hanson Realty, a Corky McMillin Company (Hanson Realty), Paul Van Elderen, Dallas Woodring and Stanley Kellerup, to exclude evidence pertaining to Kellerup's signing of the sales agreement on behalf of his client, the buyer. Court find no abuse of discretion as there is no causal relationship between Kellerup's conduct and any damages of the Ulloas. Court affirm the judgment.

A jury convicted Duane Andrew Young of three counts of robbery (Pen. Code, 211) and three counts of being a felon in possession of a firearm ( 12021, subd. (a)(1)). The jury also found that Young had personally used a firearm during the robberies ( 12022.53, subd. (b)), and he had four prior convictions, one serious prior and one strike prior ( 667.5, subd. (b), 667, subd. (a), 1170.12, 1192.7). The trial court sentenced Young to 36 years in prison.
Young's three robbery convictions stemmed from two separate robberies a September 13, 2004 robbery outside a Hollywood Video store in Vista (counts 2 & 3) and a September 17 robbery outside a Jack-in-the-Box restaurant in Escondido (count 5). Young was also convicted on three counts of being a felon in possession of a firearm: once on September 13, once on September 17, and then on a third occasion when he was arrested on September 29, 2004 (counts 4, 6 & 10).
On appeal, Young contends we must reverse his convictions on one of the counts of robbery and on one of the counts of being a felon in possession of a firearm because they are not supported by substantial evidence. Court set out the facts relating to each of these contentions, and our resulting analysis, separately below.

A jury convicted Maricela Ruiz of felony misapplication of records (Gov. Code, 6200) and misdemeanor destruction of evidence (Pen. Code, 135). The court ordered Ruiz to serve three years' probation. On appeal, Ruiz contends: (1) the sentencing minute order erroneously provides that the destruction of evidence conviction is a felony, and (2) insufficient evidence supports the convictions.

Florentina G. and Carlos G. appeal a judgment of the juvenile court terminating their parental rights to their minor son Charly G. under Welfare and Institutions Code section 366.26. Carlos challenges the sufficiency of the evidence to support the court's finding that Charly was likely to be adopted within a reasonable time. Florentina joins in Carlos's contention.
The San Diego County Health and Human Services Agency (Agency) filed a motion to augment the record along with its Respondent's brief. The Agency seeks to introduce an interim review report it alleges contains new evidence showing the parents' challenge to adoptability is moot. Carlos filed an opposition to the motion. Court affirm the judgment and deny the motion to augment.

Leroy Latham appeals his conviction of infliction of great bodily injury on a spouse by personally using a firearm. (Pen. Code, 273.5, subd. (a), 12022.5, subd. (a)(1), 12022.7, subd. (e), 1192.7, subd. (c)(8).) He was sentenced to a prison term totaling 18 years.
Latham contends the trial court improperly allowed evidence about a dispute over a golf club putter, the prosecutor committed misconduct in arguing reasonable doubt, and the court improperly allowed the prosecutor to constructively amend the information at the end of the presentation of evidence. Court affirm the judgment.

Tyrone Marcel Elliott's appellate counsel filed this appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. With this court's approval, defendant filed a brief on his own behalf, asserting the trial court made certain errors in revoking probation granted in a previous case and in instructing the jury. Court find no error and affirm.

Plaintiff (ABF) appeals the dismissal of its first amended complaint against defendants and respondents Grove Properties Company and one of its principals, Thomas A. Day (referred to for convenience collectively as Grove). The trial court sustained Groves demurrer without leave to amend. ABF appeals. Court affirm.

Alicia Claudio, individually (Plaintiff), and as guardian ad litem for minor Elise Claudio (Child), initiated this action against James C. Johnson (Defendant) for breach of contract, breach of third party beneficiary contract, specific performance, and promissory fraud. Defendant brought a special motion to strike the promissory fraud cause of action under the Strategic Lawsuit Against Public Participation (SLAPP) statute. (Code Civ. Proc., 425.16.) The trial court denied the motion, and Defendant appeals.
The order denying the motion to strike and awarding attorney fees is reversed. The trial court is directed to enter a new order granting Defendants anti SLAPP motion as to the promissory fraud claim. Upon an appropriate motion and factual showing, Defendant may recover attorney fees and costs in connection with his anti-SLAPP motion and on appeal, under section 425.16, subdivision (c), in an amount to be determined by the trial court.

Defendants North Bay Construction (NBC), Fred Hottenroth, John Pulliam Masonry (JPM) and John Pulliam (collectively Defendants) appeal from a judgment entered against them and in favor of plaintiff Self Storage Investors, LLC (SSI) on December 15, 2005. They claim that the trial court erred because it entered judgment before allowing them to have a trial on their affirmative defenses based upon the California Insurance Guarantee Association (CIGA) Act (Ins. Code, 1063 et seq.). Court agree, and reverse the judgment.