CA Unpub Decisions

Jorge R., a minor, appeals from an order that he remain a ward of the court pursuant to Welfare and Institutions Code section 602 by reason of having committed an assault with a firearm (Pen. Code, 245, subd. (a)(2)). The juvenile court ordered appellants physical custody taken from his parents or guardian and that he be committed to the care and custody of the probation department for the purpose of suitable placement in the Camp Community Placement program for a period of nine months. Appellant contends that (1) the true finding with regard to the allegation that he committed assault with a firearm is unsupported by the evidence, (2) the trial court erred in failing to declare whether the offense was a felony or misdemeanor, requiring remand, and (3) the probation conditions requiring him to stay away from disapproved persons and unlawfully armed persons are overbroad and vague, violating his federal constitutional rights to travel and association.
Court modify the challenged conditions, remand for the trial court to declare if the offense is a felony or misdemeanor and otherwise affirm.

Rayonier Inc., Southern Wood Piedmont Inc. (Southern Wood), ITT Industries, Inc., and ITT Fluid Technology Corporation (ITT Fluid) are plaintiffs in an action against several insurers seeking to establish duties to defend and indemnify relating to the investigation and remediation of environmental contamination. Rayonier formerly was a wholly owned subsidiary of ITT. Southern Wood is a subsidiary of Rayonier. ITT Fluid is a wholly owned subsidiary of ITT. The same counsel represented Rayonier, Southern Wood, ITT, and ITT Fluid in this litigation for many years. After counsel moved to be relieved as counsel for Rayonier and Southern Wood, Rayonier and Southern Wood moved to disqualify the same attorneys as counsel for ITT and ITT Fluid. The court granted the motion to be relieved as counsel but denied the motion to disqualify counsel, based on laches and other grounds. Rayonier and Southern Wood challenge the latter order and a subsequent order sustaining objections to evidence submitted in support of their motion. They have filed both an appeal (case No. B187238) and a petition for a writ of mandate (case No. B187829).
This insurance litigation so far has resulted in over $112 million in settlements for the plaintiffs and may result in further recoveries through settlement or judgment. Rayonier and Southern Wood, on the one hand, and ITT and ITT Fluid, on the other, have disputed the division of settlement proceeds and entered into agreements providing for binding arbitration to resolve their dispute. Rayonier and Southern Wood contend the plaintiffs had and continue to have conflicting interests with respect to the division of settlement proceeds, despite their agreements with each other and their common interests vis vis the defendants. Rayonier and Southern Wood contend disqualification is required because counsel (1) concurrently represented clients with conflicting interests without having obtained the clients informed written consent and (2) improperly counseled and acted on behalf of ITT and ITT Fluid in connection with the settlement division dispute. Rayonier and Southern Wood also contend the court had no jurisdiction to sustain objections to evidence submitted in support of their motion to disqualify after they had filed a notice of appeal from the denial of their motion.
Court conclude that the trial court properly found that Rayonier and Southern Wood unreasonably delayed their motion to disqualify counsel and are barred by laches. As a result their challenge to the order sustaining evidentiary objections is moot. Court therefore affirm the order denying the motion to disqualify and deny the petition for writ of mandate.

This appeal arises out of the Aubry Revocable Family Trust dated March 4, 1987 (the Aubry family trust). Nina Ringgold appeals from: a November 15, 2005 preliminary distribution order; a December 6, 2005 order removing Daniel Stubbs as trustee of the Mary Louella Saunders Supplemental Needs Trust (the supplemental needs trust) and appointing Ernest Gordon Saunders, Mary Louella Saunderss son and legal guardian, as trustee; a December 16, 2005 attorney withdrawal order; and a December 16, 2005 distribution order. Court affirm those orders as to Ms. Ringgold. In addition, Ms. Ringgold purports to represent Ms. Saunders on appeal from the foregoing orders. However, for the reasons discussed below, we find Ms. Ringgold is not authorized to pursue this appeal on Ms. Saunderss behalf. As a result, the appeal is dismissed as to Ms. Saunders.

Appellant, Steven N., admitted the allegations in a juvenile delinquency petition (Welf. & Inst. Code, 602) that when he was 12 years old he committed a lewd act upon a child (Pen. Code, 288, subd. (a); count 1) and orally copulated a person under the age of 14 (Pen. Code, 288, subd. (a)(c)(1); count 2). The juvenile court found count 1 of the petition true, held count 2 in abeyance, and placed appellant home on probation.
Court hold as follows: (1) since appellant did not appeal from the dispositional order, he cannot complain about that underlying order placing him home on probation rather than granting a deferred entry of judgment ( 790), or about the courts statement of the theoretical maximum period of confinement; and (2) the court had no statutory authority to grant a postjudgment motion seeking to vacate the home on probation order and grant a belated deferred entry of judgment.

A jury convicted defendant and appellant Jonathan Pugh of, among other things, willful, premeditated, and deliberate attempted murder. On appeal, he contends there is insufficient evidence he intended to kill the victim and of premeditation and deliberation. He also contends the trial court erred in instructing the jury and in sentencing him. Because defendants sentence is improper, court modify the judgment, but court otherwise affirm it.

Defendants, Debra Nolette and Charles Wilkerson, appeal from their conviction for assault with a deadly weapon by means likely to produce great bodily injury. (Pen. Code, 245, subd. (a)(1).) Mr. Wilkerson also appeals his convictions for three counts of child abuse ( 273a, subd. (a)) and one count of criminal threats. ( 422.) Ms. Nolette also appeals from her convictions for three counts of misdemeanor child abuse. ( 273a, subd. (b).) In addition, defendants appeal from the trial courts findings that both Mr. Wilkerson and Ms. Nolette were each previously convicted of serious felonies and served two prior prison terms. ( 667, subds. (a)(1), (b)(i), 667.5, subd. (b), 1170.12.) Ms. Nolette argues there was insufficient evidence to support her convictions in counts 3, 4, and 5. Ms. Nolette further argues that the trial court improperly failed to sua sponte instruct the jurors on the specific intent element of aiding and abetting and allowed the use of a prior conviction, which was remote in time, to impeach her. Mr. Wilkerson argues the trial court improperly refused to exercise its discretion to strike his prior serious felony conviction. Mr. Wilkerson joins Ms. Nolettes arguments to the extent they accrue to his benefit. Court affirm the judgment.

A jury convicted appellant Claud Barnes of possession of a controlled substance (cocaine) in violation of Health and Safety Code section 11350, subdivision (a). The trial court suspended imposition of sentence and placed appellant on formal probation for 36 months.
Appellant appeals on the grounds that: (1) the trial court prejudicially erred in admitting appellants incriminating statement that was provoked by the arresting deputys conduct in violation of appellants Miranda rights, and (2) the trial court prejudicially erred by allowing appellant to be impeached with a misdemeanor conviction for receipt of stolen property, since this crime did not involve moral turpitude.

Plaintiff and appellant Banko Construction Inc. (Banko) purports to appeal an order following a grant of summary judgment in favor of defendant and respondent County of Los Angeles (the County). The appeal is premature; due to the pendency of the Countys cross complaint, there is no final judgment in the action. In order to resolve this matter on the merits, we treat the purported appeal as a petition for writ of mandate. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 77, 88, pp. 131 132, 147 149.)
The essential issue presented is whether Banko, which is seeking to recover against the County on a construction contract, was in substantial compliance with licensing requirements.
Court conclude, as did the trial court, that Bankos conduct did not constitute substantial compliance. Therefore, Bankos petition for writ of mandate is denied.

Timothy Leo Avalos appeals a judgment imposing an eight-year term of imprisonment, a $1,600 restitution fine, and a $1,600 stayed parole revocation restitution fine. (Pen. Code, 1202.4, subd. (b) & 1202.45.) Court modify the judgment to reflect an $800 restitution fine and an $800 stayed parole revocation restitution but otherwise affirm.

This case arises from an extensive conspiracy to commit computer-access fraud and identity theft by Olawtunji Oluwatosin and other, unknown conspirators affecting numerous individuals and financial institutions. Pursuant to his negotiated plea to one count of conspiracy to commit computer intrusion and one count of grand theft of personal property, Oluwatosin was sentenced to an aggregate state prison term of 10 years. Oluwatosin timely appealed from the judgment, challenging the trial courts sentencing decision; he did not obtain a certificate of probable cause. The appeal is dismissed.

Appellant Orlando L., an alleged father incarcerated in Nevada, received notice of a dependency proceeding by certified mail. He did not communicate to the court or the social worker that he wished to participate in the dependency case. The jurisdiction/disposition hearing went forward without appellants participation. Court conclude that appellant has no standing to appeal the dispositional order made by the court: he was given notice and an opportunity to be heard, yet failed to take any action to become a party to the proceeding. The judgment is affirmed.

Gary Alan Kroll, as trustee of the Kroll Family Revocable Trust (Kroll), appeals from a judgment in favor of plaintiffs Diane E. Diffenderfer and Karen D. Busch denying his claim for a prescriptive easement across their land and quieting title in plaintiffs favor.
Kroll disputes on appeal the trial courts express finding that there was insufficient evidence to establish a prescriptive easement. Court affirm the judgment.

D.H. (appellant), the mother of A.H. (the minor), appeals from juvenile court orders terminating her parental rights. (Welf. & Inst. Code, 366.26, 395; further section references are to this code.) She raises no issues relating to the proceedings in which her parental rights were terminated. Instead, she reargues issues previously raised in a petition for writ relief pursuant to California Rules of Court, rule 8.452. (See Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501.) Court affirm the orders.

High Tide Caf (High Tide) entered into a listing agreement with G.R. Bill Business Brokers, Inc. (G.R. Bill) to sell its restaurant business. The listing agreement, which entitled G.R. Bill to a broker's commission in the event the sale was "accomplished," did not contain an attorney fees clause. G.R. Bill found a buyer, and High Tide and the buyer entered into a purchase contract that acknowledged G.R. Bill's right to payment of a commission in accordance with the terms of the listing agreement. The parties to the purchase contract opened an escrow, and the escrow instructions, which acknowledged G.R. Bill's right to payment of a commission "upon the close of escrow" and contained two attorney fees clauses, defined "close of escrow" as the transfer of a specified liquor license to the buyer. Although the liquor license was transferred to the buyer, and both High Tide and the buyer agreed in writing that the other contingencies were satisfied, the buyer refused to sign escrow closing instructions.
Court conclude the court did not err in (1) finding that High Tide was contractually obligated to pay G.R. Bill's $30,000 commission because the sale was "accomplished" within the meaning of the listing agreement, and (2) awarding reasonable attorney fees to G.R. Bill as the prevailing party. Accordingly, court affirm the judgment.