CA Unpub Decisions

Cynthia B. (mother) and David C. (father) (collectively parents) appeal from the juvenile courts orders terminating their parental rights to their daughters Angelina C. (case number JD16028) and Christina C. (case number JD16029) (collectively the girls) and freeing them for adoption. (Welf. & Inst. Code, 366.26, 395.) Father also appeals from the courts further order denying his petition to modify a prior order of the court ( 388, subd. (a)). Court affirm the orders.

Elisa H. appeals from the order of the juvenile court terminating her parental rights to L. H. pursuant to Welfare and Institutions Code section 366.26 She describes the issue presented in this appeal as "Whether the section 366.26, subdivision (c)(1)(A) exception to adoption was triggered where an eight year old child wanted to both live with her caretakers and continue the relationship she had with a mother she loved; especially in light of the court's recognition of the strength of the parent/child relationship and favoring open adoption." Court affirm.

This appeal is from a judgment following nearly 20 years of protracted and convoluted litigation arising out of a partnership agreement between Frederick Kennerley and Larry Allred to develop several lots in Danville, California. Over the course of the litigation there have been several bankruptcies, an action on a bond, an irrevocable trust, assignments of a number of claims and at least one divorce. Ultimately, the litigation boiled down to the disposition of proceeds from the sale of one of the lots: Lot 4. Allred, who had been charged with the responsibility of winding up the partnership, had used his own funds to purchase Lot 4 from the mortgage company. He then transferred title to himself, and subsequently transferred the property to his former wife, Shirley Allred. The superior court later ruled Allred had acted improperly in connection with those transfers. In a separate, derivative action, a different judge set aside the transfer to Shirley Allred. (Super. Ct. Contra Costa County, 1998, No. C96-04401.) In the end, the court in these proceedings ordered the sale of Lot 4, ordering further that the proceeds from the sale be distributed in the following manner: (1) $106,000 to Allred to repay him for the sum spent to prevent foreclosure on Lot 4, plus taxes and interest; (2) $175,383.36 to an irrevocable trust that had been established by Rebecca Kennerley (the Trust) as the owner of a judgment against the partnership; (3) $37,931.50 to the Trust on the theory that it had purchased Kennerleys right to attorney fees, and (4) $15,000 to the Trust on the theory it had obtained Kennerleys right to wages.
Allred appeals, contending, in part, the court erred by concluding he was not entitled to purchase Lot 4 for himself, and also by ruling additional sums owed to him could not be set off against the sums to be paid to the Trust. Allred also contends the court erred by refusing to allow him to introduce evidence that the $175,383.36 obligation to the Trust was owed by a entity other than the partnership. He contends the court erred by finding the judgment creating the debt had in fact been transferred to the Trust, arguing further the court should have allowed him to introduce evidence the Trusts attorney at one time had taken a position inconsistent with that finding. He contends the court erred by finding the Trust was entitled to the sum representing attorney fees. Finally, he contends the evidence does not support an implied finding Kennerley had transferred his right to attorney fees and wages to the Trust.
Court affirm.

Plaintiff (Pollard) claimed that he suffered from asbestosis caused by exposure to Unibestos, a product distributed by defendant Metalclad Insulation Corp. (Metalclad). Metalclad contended that Pollard did not have any asbestos related injury and, if he did, it was not from exposure to Unibestos. A special jury verdict determined that Unibestos had a design defect, that there was a failure to warn, and that Metalclad was negligent. That same verdict three times answered no to the question whether the defect, failure, or negligence was a legal cause of injury to Pollard.
On appeal Pollard asserts that there was substantial evidence to the contrary and that the trial court committed error in two evidentiary rulings. Court conclude that substantial evidence supports the special verdict and that neither evidentiary contention has merit. Accordingly, court affirm.

Appellant is the mother of seven-year-old Charles B., a dependent child of the juvenile court. Mother appeals from an order terminating her parental rights. (Welf. & Inst. Code, 366.26.) She contends that termination of her parental rights would substantially interfere with Charless relationships with his siblings, and that the juvenile court erred by denying her request for an updated adoption assessment. Court disagree with these contentions for the reasons set forth below.
Mother also contends that respondent Contra Costa County Department of Children and Family Services (Department) and the juvenile court did not comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). Court agree with this contention and reverse. Based on the information in the record on appeal that was before the juvenile court at the time it reviewed the sufficiency of the ICWA notice, the court erred by finding the notice was sufficient. Court order a limited remand, as court explain below.

A class action complaint alleged that a bank sold confidential credit cardholder information to third party vendors. The class representatives and bank reached a settlement, and the trial court approved the settlement over the objections of a consumer organization and a small number of individual class members. The objectors primary contention is that the settlement is unfair because it commits the entire monetary recovery of $5 million (less costs of class notice) to educational and charitable organizations, without providing any direct compensation to class members. Court conclude that the trial court did not abuse its discretion in approving as fair and adequate the settlement agreement given the impracticability of direct compensation to a potential class of several million people.

Defendant Carmen H. appeals from a jurisdictional and dispositional order of the juvenile court adjudging her now 15 year old son, Vaughn, a dependent child pursuant to Welfare and Institutions Code section 300, subdivision (b). She contends the dependency petition failed to state a cause of action and that there was insufficient evidence for the court to assume jurisdiction over the minor. Court affirm.

Joseph S. appeals from his adjudication as a ward of the court. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (Nov. 27, 2006, S133114) Cal.4th [2006 Cal. Lexis 15095]; People v. Wende (1979) 24 Cal.3d 436; see Smith v. Robbins (2000) 528 U. S. 259.) Upon independent review of the record, court conclude that no arguable issues are presented for review, and affirm the judgment.

Jennifer L. (Mother) and Ken L. (Father) challenge an order of the Napa County Superior Court, Juvenile Division, which set a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for Charles L. (born August 2000). Court deny their petitions on the merits.

Jesus Valdez sued his former employer, respondent Lennox Hearth Products, bringing causes of action related to his employment and the termination of his employment. Lennox Hearth's motion for summary judgment was granted and judgment was entered in its favor. In B171364, we reversed that judgment, finding that there was a triable issue of fact on a single the cause of action, the cause of action for breach of contract. We noted that on appeal, but not in the trial court, Lennox Hearth argued that the cause of action was pre-empted by the federal Labor Management Relations Act. Court held that "Issues not raised in the trial court cannot be raised for the first time on appeal." (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) This question must be addressed to the trial court. The judgment is affirmed.

The marriage of petitioner Mercedes Nakamoto and respondent Luis Nakamoto ended with a judgment of dissolution in 2001. The judgment provided that a family owned business, Super Pollo I, would be co-owned by the parties. Mercedes was allowed to run Super Pollo I and had the right to purchase Luiss interest within four years. The judgment further provided that the businesss accounting was to be handled by White, Zuckerman, Warsavsky, Luna, Wolf & Hunt (White Zuckerman), and if Mercedes exercised the buyout provision, the value of Luiss interest would be determined by an appraisal performed by White Zuckerman.
When Mercedes tendered payment to purchase the business in 2004 pursuant to an appraisal by White Zuckerman, Luis objected to the amount of the appraisal and refused to complete the sale. Luis appeals from the trial courts postjudgment order determining that the appraisal was valid and the sale was to be completed in accordance with the judgment of dissolution. In this appeal, Luis argues: (1) the trial courts order appointing White Zuckerman at the time of the dissolution judgment in 2001 was error because of a lack of evidence the firm was qualified to prepare the appraisal; (2) the order appointing White Zuckerman was deficient because the order did not detail how White Zuckerman was to conduct the appraisal; and (3) the trial court erred by enforcing the buyout provision of the judgment based upon the appraisal of White Zuckerman.
Court hold the first and second contentions were forfeited by Luiss agreement to the terms of the judgment and his failure to appeal from the judgment in 2001. Court further hold the trial court properly construed the judgment of dissolution to mean the White Zuckerman appraisal was binding on the parties and enforcement of the buyout provision was proper.

Michael Butler appeals from the judgment entered after a jury convicted him of two counts of committing a lewd or lascivious act on a child under the age of 14 years and found the acts to have been committed on more than one victim. He was sentenced to two current terms of 15 years to life in state prison. Butler contends the court erred by instructing with CALJIC No. 2.20.1 and by sentencing him to life terms under Penal Code section 667.61. Court affirm.

Norberto Arredondo petitions this court for a writ of habeas corpus vacating his conviction for assault with a deadly weapon based on ineffective assistance of counsel. Court remand this matter to the superior court for appointment of a referee to take evidence about the reasons Arredondos defense counsel did not call certain witnesses.

After her neighbor, defendant and appellant Leonard Drake (defendant), physically beat and threatened to kill her in the garage of their apartment complex, plaintiff and respondent Margaret Monos (plaintiff) petitioned the trial court for a restraining order against defendant. Although he had notice of the hearing on plaintiffs petition, defendants attorney failed to appear on the day of the hearing. The trial court proceeded without defendants attorney, and issued a permanent restraining order that, inter alia, required defendant to vacate his residence next door to plaintiff within 60 days. The trial court subsequently denied defendants motion to set aside the restraining order under Code of Civil Procedure section 473, subdivision (b).
Defendant appeals from the restraining order, arguing that the trial court denied him the statutorily required hearing and opportunity to present evidence by proceeding without his attorney. He also contends that there was insufficient evidence under the clear and convincing statutory standard to support the trial courts issuance of the restraining order.
Court hold that because it is undisputed that defendant had notice of the date and time of the hearing on plaintiffs petition for a restraining order, he had a full and fair opportunity to appear and be heard. Court also hold that there was substantial evidence of the claimed harassment under the clear and convincing evidence standard. court therefore hold that the trial court did not abuse its discretion in issuing the permanent restraining order, and affirm that order on appeal.