CA Unpub Decisions

Letantia and Todd Bussell appeal from the judgments entered against them on five probate petitions joined for trial. These judgments followed the imposition of terminating sanctions. Letantia and Todd argue, among other things, that the court abused its discretion in imposing such a draconian punishment. We disagree. Letantia and Todds entire course of conduct in this case can be fairly summed up in two words: Make me. Respondent Jacqueline Reedy had to do so repeatedly, filing motions with the court to force their compliance with discovery obligations, and at other times simply caving in to their unreasonable demands for accommodations. The court consistently gave Letantia and Todd the benefit of the doubt, and strongly indulged the policy preference for allowing matters to proceed on their merits.
The judgment against Todd is reversed with respect to Reedys petition case Nos. A217515 and A219334, and those petitions are remanded with directions that the court reconsider whether more limited issue sanctions, relating to liability only, would be appropriate, and for further proceedings in accordance with that decision. The judgment is affirmed in all other respects.

Diane Thomas appeals from a post dissolution order that fixed the amount of interest due on unpaid child support owed by Robert C. Thomas, Jr. In a prior opinion, we held interest had not been properly calculated and reversed with directions to recompute that sum. Diane argues the trial court understated the amount of unpaid child support, and because of that, it also understated the interest due. Court disagree and affirm.

Sunwest Bank (Sunwest) appeals from a postjudgment order that denied its motion for the sale of a dwelling to satisfy a money judgment against Mohammad Mike Rafipoor. Sunwest argues its judgment lien remained valid despite Rafipoors conveyance of the property to a corporation, and it was no defense that Rafipoor held title under a resulting trust for the corporation. Court agree on the first point and conclude the trial court did not decide the second, so court reverse and remand for determination of the resulting trust issue.

PacifiCare Life and Health Insurance Company, and PacifiCare of California (collectively PacifiCare) appeals from an order denying their petition to compel arbitration of the lawsuit brought against them by George and Shirley Ogle. Court affirm the order. The arbitration provision at issue in this case is found in PacifiCares 2003 subscriber agreement, and is governed by the Knox-Keene Health Care Service Plan Act of 1975 (Health & Saf. Code, 1340 et seq.). PacifiCare has waived any contention the trial court erred in applying the Knox-Keene Act, and has otherwise failed to persuade us the provision complies with the Acts requirements. Consequently, the provision is unenforceable.

The trial court refused to grant relief to extend the time to file a motion to quash for lack of personal jurisdiction. Petitioner is a small Massachusetts corporation, which was named as a Doe defendant in a wrongful death case almost two years after the lawsuit was originally filed, and which missed the deadline to respond to the complaint and challenge jurisdiction in California by two weeks. The person responsible for ensuring the summons and complaint served on the corporation were forwarded to the corporations insurance broker did not do so because of severe, emergency family crises and tragedy, involving the sudden death of her brother and the serious illness of her mother, both of which required her time and attention for several months. The corporations failure to timely respond to the complaint was excusable neglect as a matter of law, and Theodore and Sandra Premer, plaintiffs and real parties in interest, would not suffer any prejudice if the trial court granted the relief sought. Therefore, court issue a peremptory writ directing the trial court to grant the requested relief.

As explained in detail in another opinion filed concurrently, Shoreline Aviation, Inc. v. Superior Court (Mar. 2, 2007, G038154) [nonpub. opn.], the trial court refused to grant relief to extend the time to file a motion to quash for lack of personal jurisdiction. Petitioner, a small Massachusetts company named as a Doe defendant almost two years after the lawsuit was originally filed, missed the deadline to challenge jurisdiction by two weeks, due to excusable neglect. Plaintiff and real party in interest Paul Mumford, Sr., would not suffer any prejudice if the trial court granted the relief sought. Therefore, court issue a peremptory writ directing the trial court to grant the motion to extend time.

Plaintiff Coffman Specialties, Inc. (CSI) brought a claim against defendant West Coast Aggregates, Inc. (West Coast) for breach of contract to supply materials for a project to widen Highway 101. Following trial, the court found in favor of CSI and awarded damages in the amount of $391,592, plus costs, prejudgment interest, and attorneys fees. On appeal, West Coast contends: (1) the trial court erred in allowing CSI to base its claim on documents not specifically identified in its complaint; (2) the statement of decision was ambiguous and inconsistent, and failed to resolve material issues; and (3) there was insufficient evidence to support the finding that there was a written contract between the parties. Court find no error and affirm.

Appellant Helen W. challenges the juvenile courts orders taking jurisdiction over her 15 year old son Christopher H., removing him from parental custody and placing him in foster care. She claims, among other things, that she was denied due process when the court held the jurisdictional hearing in her absence after continuing it for the appointment of counsel and proceeding without appointing counsel to represent her. Court conclude that the juvenile court erred in proceeding with the jurisdictional hearing under the circumstances and remand the matter for a new jurisdictional hearing.

Acting on behalf of several interested parties, special administrator David C. Lee prosecuted an elder abuse action against Max Schoenfeld, husband of the late Heidi Schoenfeld. The jury rejected claims alleging fiduciary abuse, physical abuse, intentional infliction of emotional distress and constructive fraud, but it found Max liable for fraud and imposed damages of $50,000. In this appeal, the special administrator argues the trial court erred by excluding evidence of alleged incidents of abuse that occurred more than three years before Heidis death. Court conclude the ruling was within the courts discretion and affirm the judgment.

After a jury trial, appellant was convicted of one count of second degree burglary. (Pen. Code, 459.) The jury also found that he had suffered five prior strikes. ( 667, subds. (d) & (e), & 1170.12, subds. (b) & (e).) On appeal, appellant claims: (1) he was prejudiced by ineffective assistance of counsel in connection with plea negotiations with the District Attorneys office, (2) the trial court erred in allowing the prosecution to admit, under Evidence Code section 1101, subdivision (b)), evidence of two prior bad acts by appellant, and (3) he was entitled to a jury trial on the issue of his identity regarding his prior convictions. Court disagree with all of these contentions and hence affirm.

Appellant molested his 10- and 12-year old nieces while they were visiting him during summer vacation. A jury convicted him of five counts of lewd and lascivious conduct with a child under 14 and returned true findings on allegations that he had committed offenses against more than one victim, making him eligible for One Strike sentences of 15 years to life on each count and ineligible for probation. (Pen. Code, 288, subd. (a) , 667.61, subds. (b), (c)(8) & (e)(5), 1203.066, subd. (a)(7).) The jury further determined that appellant had engaged in substantial sexual conduct with one of the victims, which also rendered him ineligible for probation. (Pen. Code, 1203.066, subd. (a)(8).) The court sentenced appellant to consecutive terms of 15 years to life on two of the counts (one for each victim) and ran the sentences on the remaining counts concurrently.
Appellant contends: (1) the judgment must be reversed because defense counsel was not permitted to fully examine one of the girls concerning the use of words that implied a knowledge of sexual matters beyond her years, and (2) the evidence was insufficient to support the finding of substantial sexual conduct. Court affirm.

Mother appeals from orders of the juvenile court denying her petition for modification under Welfare and Institutions Code section 388 and terminating her parental rights to her daughter, K.S. Mothers principal contentions on appeal are that the juvenile court erred in denying her section 388 petition without holding an evidentiary hearing, that the juvenile court improperly terminated her parental rights pursuant to section 366.26 without sufficient evidence that K.S. was adoptable, and that Mother received ineffective assistance from her trial counsel who did not raise the issue of K.S.s adoptability in the juvenile court. For the reasons set forth below, court find no error and affirm the juvenile courts judgment.

Defendant pleaded guilty to first degree burglary (Pen. Code, 459, 460, subd. (a)) in exchange for dismissal with a Harvey (People v. Harvey (1979) 25 Cal.3d 754) waiver of one count of second degree burglary (Pen. Code, 459, 460, subd. (b)), four counts of theft of a firearm (Pen. Code, 487, subd. (d)(2)), and one count of theft of more than $400 of property (Pen. Code, 487 (a)). Defendant was sentenced to four years in prison, and ordered to pay $12,180.25 in restitution to the victim (Pen. Code, 1202.4, subd. (f)). Defendant argues, and court agree, that the restitution order was not supported by substantial evidence and that a new restitution hearing is required.

As part of an agreement to plead no contest to drug possession, defendant was placed on three years probation conditioned, among other things, on completion of a residential drug treatment program. Three years later, following her arrest for robbery, the trial court revoked her probation after a contested hearing. The court sentenced her to serve the full three year upper term for her original offense. On appeal, defendant contends that the trial court erred in imposing the upper term sentence for the underlying offense. Court affirm the judgment.