CA Unpub Decisions

The judgment on the declaratory relief action in favor of Sirls and the Trust is reversed. The award of $1,326,826 in damages, plus an additional $300,000, is reversed. To the extent that Sirls and the Trust were awarded costs, attorney fees and prejudgment interest associated with the claims involving the Agreement and the Note, such award is also reversed. In all other respects, the judgment is affirmed. The matter is remanded and the trial court is instructed to enter a new judgment that is consistent with the jurys verdict; namely, that the award of damages is limited to $519,000, plus any applicable
prejudgment interest, in favor of Sirls based on his breach of Employment Contract claim. Interiors is to recover its costs on appeal.

Appellant seeks reversal of the trial courts denial of his request for a California Rehabilitation Center (CRC) evaluation referral. (Welf. and Inst. Code 3051.) Court remand for further proceedings.

Following a jury trial, appellant was convicted of attempted voluntary manslaughter (Pen. Code, 664, 192, subd. (a)), assault with a deadly weapon ( 245, subd. (a)(1)), and misdemeanor domestic violence ( 243, subd. (e)(1)) all against his estranged wife, Mrs. Salgado; making a criminal threat ( 422) against his son, J.; and violating a court order ( 273.6, subd. (a)). Eight prior strike convictions and prior prison term allegations were found true. The trial court sentenced appellant to a total prison term of 32 years to life: 25 years to life on the attempted manslaughter conviction, plus a five year consecutive sentence for a prior serious felony enhancement ( 667, subd. (a)) and a two year consecutive sentence for two prior prison term enhancements ( 667.5, subd. (b)). Appellant also received a 32 years to life sentence on the assault conviction, stayed pursuant to section 654; a 32 years to life sentence on the criminal threat conviction, ordered to run concurrently; one year local time on the misdemeanor domestic violence conviction, stayed pursuant to section 654; and one year local time on the conviction for violating a court order, to be served concurrently.
Appellant contends that there is insufficient evidence to uphold the criminal threat conviction; that he received ineffective assistance of counsel when trial counsel failed to move for mistrial due to witness misconduct; and that the trial court improperly sanitized Mrs. Salgados prior convictions and improperly excluded evidence of her drug use. He contends these errors resulted in cumulative error. He finally contends he is entitled to additional presentence credit. Court agree only with appellants final contention. Court also agree with respondents request that we modify the abstract of judgment to reflect proper imposition of an enhancement on two counts. In all other respects, court affirm.

Petitioners Sierra Bible Church (SBC) and GuideOne Insurance Company petition for a writ of review contending the medical evidence fails to support the finding of the Workers Compensation Appeals Board (WCAB) not to apportion a disability award based on the employees underlying pathology. (Lab. Code, 5952.) Court deny the petition.

Petitioner petitions, in propia persona, for a writ of review asking this court whether the Workers Compensation Appeals Board (WCAB) properly denied his petition for reconsideration from a decision finding he did not sustain an industrial injury. (Lab. Code, 5950, Cal. Rules of Court, rule 57.) Lacking substantial evidence supporting a work related injury, Court deny the petition.

Plaintiffs, a homeowners association and several of its individual members, filed several lawsuits seeking damages for construction defects. The lawsuits, including cross-complaints filed by the defendants, were consolidated and ultimately settled. The parties involved in that litigation included the Buie Corporation (Buie), a licensed general contractor, and Altifillisch Contractors, Inc. (ACI), a grading subcontractor. The liability insurance carriers for both Buie and ACI contributed to the payment made to plaintiffs.

In the present action, plaintiffs jointly sued three insurance companies that provided liability insurance to ACI seeking equitable subrogation, contribution, and declaratory relief. They allege Buie was either a named insured or an additional insured under ACIs policies, the settlement payments by Buies carriers in the construction defect litigation arose from ACIs grading work, and both Buie and its carriers assigned their contribution and subrogation rights against defendants to plaintiffs.
The trial court entered judgment for defendants after granting their motions for summary judgment. First, as to the insurance policies that included additional insured endorsements extending the named insureds liability insurance coverage to others where the named insured was contractually obligated to do so, the court found plaintiffs had failed to present admissible evidence establishing a triable issue of fact as to whether ACI had agreed to name Buie as an additional insured on its liability insurance policies. Second, the court found the partnership exclusion clause contained in the policies issued by one defendant excluded coverage.
Court conclude plaintiffs presented sufficient admissible evidence creating a triable issue of fact as to whether the contracts between Buie and ACI obligated ACI to include Buie as an additional insured on ACIs liability policies and reverse the judgment as to two insurers. However, court conclude the court properly found the partnership/joint venture exclusion in the third carriers policies barred plaintiffs right to recover from it.

April Hobbs filed a complaint against her former employer, Roth Staffing Companies, Inc., seeking compensation for overtime wages based on her alleged misclassification as an employee exempt from overtime. She sought to certify a class of all Roth employees similarly situated to her. The trial court denied class certification, finding that common issues did not predominate. On appeal from the denial, Hobbs contends the trial court abused its discretion. Court find no abuse and affirm.

Howard Gensler is a tenured professor at Saddleback College. He appeals from a judgment that denied a petition for a writ of mandate. The petition sought to compel the Board of Trustees of the South Orange County Community College District (District) to assign Gensler six courses during the 2006 summer session. Gensler argues the District breached the faculty employment contract when it assigned three of those courses to part time faculty, since he stood ready to teach them. Court cannot agree, and so affirm.

Under Civil Code Sec. 2988.9 which provides that a defendant in a vehicle lease contract action is deemed to be the prevailing party for the purpose of an attorney's fee award if defendant "alleges in his or her answer that he or she tendered to the plaintiff the full amount to which he or she was entitled, and thereupon deposits in court, for the plaintiff, the amount so tendered, and the allegation is found to be true" tender and deposit are not required for an award of attorney's fees where the defendant denies any liability and prevails in the trial court. Trial court properly granted defendant's attorney fee motion pursuant to Sec. 2988.9 after it dismissed plaintiff's complaint with prejudice on the first day of trial for lack of evidence.

Appellant (husband) appeals from a qualified domestic relations order (QDRO), in which the court awarded respondent Pheobe Walls (wife) a percentage of the total amount of retirement benefits husband receives from the General Retirement Plan (GRP) of the Ford Motor Company (Ford Motor). (See Code of Civ. Proc., 904.1, subd. (a)(2).) Husband also appeals from the related order awarding wife arrearage from the time husband started to receive retirement benefits. (See Code of Civ. Proc., 904.1, subd. (a)(2).) On appeal, husband claims the court erred in finding that wife had a community property interest in the total amount of retirement benefits he was entitled to receive upon retirement from Ford Motor.
Court agree and reverse the order.

Defendant William McQueen represented himself as a licensed contractor to COPE Centro Familiar (COPE), a non-profit organization that provides childcare to economically disadvantaged families. COPE contracted with defendant to construct a daycare center and preschool classrooms. An investigation of the construction projects revealed that defendant did not have a contractors license and was using another contractors license number. Defendant subsequently pleaded no contest to one felony count of fraudulent use of a contractors license number in violation of Business and Professions Code section 7027.3. The trial court placed defendant on probation for five years on the condition that he serve 180 days in county jail and pay victim restitution of $680,406.

On appeal, defendant contends that the restitution order must be reversed because (1) there is no credible evidence to support the amount of $62,698 included in the restitution order to reimburse COPE for costs incurred in attempting to complete the construction projects; (2) the trial court erred in failing to allow an offset of $178,670; and (3) trial counsel was ineffective in failing to make a proper evidentiary showing with respect to the offset claim.

For reasons that court explain, court find no merit in defendants contentions and therefore court affirm the judgment.

Plaintiff appeal the trial court's denial of their motion for preliminary injunction and request for appointment of a receiver. Plaintiffs request that this court void, or order the trial court to void, "all acts taken" by a defendant company's board of directors since June 18, 2003, and remand the issue of placing the company in receivership to the trial court for further review consistent with our findings. Court dismiss the appeal as moot because of plaintiffs' filing just prior to their appeal of an amended complaint that does not seek the relief sought by their motion and this appeal.

On July 20, 2005, appellant pleaded guilty as charged in complaint numbers CC582359 and CC584698 in return for a maximum sentence of no greater than 35 years. From these two cases, in total, appellant pleaded guilty to seven counts of first degree robbery (Pen. Code, 211, 212.5, subd. (a)), one count of second degree robbery (Pen. Code, 212.5, subd. (c)), one count of possessing methamphetamine for sale (Health and Saf. Code, 11378), one misdemeanor count of possessing controlled substance paraphernalia (Health & Saf. Code, 11364). Appellant admitted two enhancements for being armed with a firearm (Pen. Code, 12022, subd. (a)(1)) and three enhancements for personally using a knife (Pen. Code, 12022, subd (b)(1)). In addition, appellant admitted having suffered a prior "strike" and a prior serious felony conviction. The facts underlying appellant's convictions are not pertinent to this appeal. Appellant's sole issue on appeal relates to the imposition of the upper or aggravated term for some of the robbery counts. Specifically, appellant contends that when the court imposed an aggravated sentence on the basis of facts it found, which went beyond anything he pled to, the court violated his constitutional right to a jury trial as explained in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

Mother appeals from the order terminating her parental rights to L.C. and Jeremiah C. under Welfare and Institutions Code section 366.26. She contends the dependency court violated her statutory right to counsel and due process right to an opportunity to be heard when it conducted the termination hearing in her absence and her attorneys absence. As mother does not demonstrate prejudicial error, we affirm the judgment. Mother also petitions for a writ of habeas corpus seeking reversal of the termination order on the ground counsel provided ineffective assistance in failing to appear on her behalf at the hearing. As mother provides no evidence the result would have been more favorable had counsel been present, court conclude the petition fails to state a prima facie case for relief and deny the petition.