CA Unpub Decisions

Plaintiff (Sherwood), as an assignee for the benefit of the creditors of an insolvent entity called WhatsHotNow.com (tenant), filed suit against tenants landlord, defendant and respondent EOP-Marina Business Center, L.L.C. (EOP), for return of tenants security deposit in the amount of $324,000. The trial court entered judgment in favor of Sherwood. The Court of Appeal reversed and remanded the case, directing the trial court to enter judgment in favor of EOP, allowing it to retain the security deposit. (Sherwood Partners, Inc. v. EOP-MarinaBusinessCenter (July 8, 2005, B175899) [nonpub. opn.] (Sherwood I).
On remand, the trial court granted EOPs motion for costs and attorney fees in the amount of $323,000 based upon an attorney fee provision in the written lease agreement between tenant and EOP. The trial court found that Sherwood and tenant were jointly and severally liable for the costs and attorney fees. Sherwood appeals the award of costs and fees against it personally. Sherwood does not appeal the award against tenant, WhatsHotNow.com.
Court reverse. As an assignee for the benefit of creditors, Sherwood did not assume the underlying liabilities of tenant. (Credit Managers Assn. v. Brubaker (1991) 233 Cal.App.3d 1587, 1594-1595 (Brubaker).) Thus, Sherwood cannot be personally liable for the award of attorney fees pursuant to the written lease between EOP and tenant. The widely used procedure of an assignment for the benefit of creditors would be eviscerated if an assignee like Sherwood were required to assume the underlying liabilities of the assignors insolvent business. (Ibid.)
Moreover, court conclude that as an assignee for the benefit of tenants creditors, Sherwood was a trustee of an express trust. (Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1171.) Code of Civil Procedure section 1026, subdivision (b), quoted below in the Discussion, does not permit an award of costs and attorney fees against a trustee of an express trust absent mismanagement or bad faith by the trustee in the action. Because Sherwood did not engage in mismanagement or bad faith in the prosecution of this action, pursuant to section 1026, subdivision (b), Sherwood is not personally liable for EOPs costs and attorney fees.
Court therefore remand the case to the trial court with direction to enter a new and different judgment stating that Sherwood, as assignee for the benefit of creditors, is not personally liable for the award of costs and attorney fees in favor of EOP.

Appellant contends that the trial court erred in sustaining the demurrer to his amended complaint on statute of limitations grounds. Court affirm.

In this appeal, the minor plaintiffs, Janeille Teng and Brenda Teng, through their guardian ad litem Pros Charlie Ouk, and their grandmother, Chrin Ming (plaintiffs), challenge a summary judgment granted to the State of California (defendant). The case stems from a vehicular accident on State Route 60 (the Pomona Freeway). The vehicle in which plaintiffs were riding left the freeway, went down an embankment, and hit a tree. The plaintiffs were severely injured in the accident, and the parents of the two minor plaintiffs (their mother, Seang Teng, and their father, Tong Vann), who were also in the vehicle, died at the scene.
After filing a tort claim with defendant, plaintiffs sued defendant for premises liability.[1] In ruling on defendants motion for summary judgment, the trial court determined that based on (1) the number of accidents in which a vehicle went over the embankment at or near the accident site in the three years preceding the accident, and (2) the number of vehicles using Route 60 at or near the accident site during those three years, defendant established a prima facie case that the condition of the freeway that plaintiffs contend caused their own injuries and their parents deaths (hereinafter, plaintiffs injuries) does not constitute a dangerous condition. The trial court further ruled that because plaintiffs did not demonstrate that the number of prior accidents in that three-year period exceeds ordinary statistical probabilities for the number of vehicles traveling along that portion of the freeway, plaintiffs did not present a triable issue of fact concerning whether that portion of the freeway constitutes a dangerous condition.
Court's examination of the record convinces court the summary judgment affirmed.

In case No. BA294303, Gilberto A. Peraza (defendant) appeals from the judgment entered following revocation of probation previously granted after his negotiated plea of guilty to second degree burglary of a vehicle. (Pen. Code, 459). After revocation of probation and at sentencing, the trial court imposed a prison term of 16 months, which was ordered to be served concurrently with the 16-month prison term imposed in a new, unrelated case, No. BA296370.
Court appointed counsel to represent defendant on this appeal. After an examination of the record, counsel filed an Opening Brief in which no issues were raised.
Court have examined the entire record and are satisfied that defendants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.) The judgment is affirmed.

Defendant, mother, appeals from the judgment terminating her parental rights to her daughter, Michaela C. Mother contends, and the Department of Children and Family Services (the department) agrees, that the judgment must be reversed because the juvenile court failed to comply with the requirements of the Indian Child Welfare Act (ICWA). In addition, mother contends (1) evidence of the prospective adoptive parents ability to care for Michaelas special needs was admissible and (2) the finding of adoptability was not supported by substantial evidence. Court reverse with instructions to the juvenile court to comply with the notice requirements of the ICWA; in all other respects, court affirm.

Defendant, appeals from his conviction for two counts of lewd act upon a child. (Pen. Code,[1] 288, subd. (a).) Defendant argues that the prosecutor committed misconduct and there was insufficient evidence to support the trial courts order for Auto Immune Deficiency testing. Court agree there was insufficient evidence to support the testing order but otherwise affirm the judgment.

Louis R. appeals the juvenile court's dispositional order committing him to the Division of Juvenile Justice, formerly known as the California Youth Authority, for a maximum term of three years six months based on offenses found true in multiple sustained juvenile wardship petitions. (Welf. & Inst. Code, 602, 777.) The offenses were carrying a dirk or dagger (Pen. Code, 12020, subd. (a)), unlawful driving or taking a vehicle (Veh. Code, 10851, subd. (a)), and escape from a juvenile facility by removing an electronic monitor ( 871, subd. (d)). Louis R. contends that, in sentencing him, the juvenile court failed to exercise its discretion under section 731, subdivision (b), improperly imposed a sentence for the escape offense, and failed to exercise its discretion not to aggregate the terms of physical confinement under section 726, subdivision (c). Court affirm.

Appellant Zurich American Insurance Company (Zurich) argues the trial court erred in denying its motion to set aside payment orders as void. The payment orders were issued in conjunction with the courts ruling that Zurich had a duty to indemnify its policyholders, Watts Industries, Inc. (Watts) and James Jones Company (Jones). Court affirm.

On June 7, 2005, appellant, Monair Anderson, went to the 7 Eleven store on Pacific Coast Highway and Temple and began yelling and screaming at two men. A woman walked toward the door to the 7 Eleven store. Appellant hit her on the side of her face, near her eye, with his fist and forearm. The woman suffered a cut to her right eye, at the eye socket, both eyes were black and blue, her face was swollen, she received four stitches and experienced headaches for a couple of weeks. She still had a scar at the time of trial. As a result of the foregoing facts, appellant was convicted in a court trial of assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)), the court also finding that appellant personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). The trial court sentenced him to the lower term of two years, staying the great bodily injury enhancement.
Court appointed counsel to represent him on this appeal. Appellant appeals the judgment entered upon this conviction.We have examined the entire record and are satisfied that appellants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.) The judgment is affirmed.

Appellant pleaded nolo contendere to a single count of selling two grams of cocaine base. He was sentenced to the high term of five years, but was placed on probation. He appeals, contending the assessment of various fees and costs, discussed below, was erroneous. Court remand with directions to correct those errors and otherwise affirm the judgment. In light of the plea and the issues raised, court do not summarize the facts showing the commission of the offense in the afternoon of October 14, 2005, in Los Angeles.

Tommy Ray Morris (Morris) appeals the judgment (order revoking probation) entered following his plea of no contest to carjacking (Pen. Code, 215, subd. (a)) in Los Angeles County Superior Court Case No. YA061272, and the judgment entered following his plea of no contest to receiving stolen property ( 496, subd. (a)) in Los Angeles County Superior Court Case No. YA064866. Pursuant to negotiated plea agreements, the trial court sentenced Morris to a total term of nine years in state prison. Court dismiss Morriss appeals as inoperative for failure to obtain certificates of probable cause.

In this action under the Domestic Violence Prevention Act (DVPA) (Fam. Code, 6200 et seq. Eduardo Flores Mendez appeals from an order awarding attorney fees of $72,472 to Jessica Steele, respondent. Appellant contends that the trial court acted in excess of its jurisdiction because (1) in her initial pleading, respondent failed to indicate that she wanted appellant to pay her attorney fees; (2) respondent failed to present evidence concerning factors that must be considered in determining whether to award attorney fees under the DVPA; (3) a hearing was never conducted on respondent's request for a temporary restraining order (TRO) and respondent "was never found to be the prevailing party." In addition, appellant contends that the trial court erroneously failed to require respondent to prove the amount of time that her attorney had spent on the DVPA action as opposed to a related parentage action. Court affirm and impose sanctions for filing a frivolous appeal.

Camille D. seeks review of the dependency courts order terminating reunification services in this case involving seven of her eight children. She contends that extraordinary relief is warranted because services were terminated before the dependency court received the report of an evaluation conducted to determine whether her inability to comply with the case program was the result of developmental or other problems. Court deny the requested relief on the ground that the order is supported by substantial evidence.

A jury found defendant Kelly Fredricksen guilty of first degree murder and found that he was lying in wait and used a deadly weapon in committing the murder. The trial court sentenced him to life in prison without the possibility of parole, with an additional year for the weapon enhancement. On appeal, defendant contends: (1) the trial court deprived him of his federal constitutional rights by improperly restricting the testimony of his psychology expert; (2) the prosecutor committed misconduct by misleading the jury about the law of manslaughter; (3) the trial court erred in denying his new trial motion based on newly discovered psychological test results; and (4) the lying in wait special circumstance is unconstitutionally overbroad and constitutes cruel and unusual punishment under the facts of this case. Finding no merit in defendants arguments, court affirm the judgment.