CA Unpub Decisions

Pursuant to a negotiated disposition, defendant pleaded no contest to cultivation of marijuana (Health and Saf. Code, 11358). Defendant pleaded no contest after unsuccessfully moving to suppress evidence and to unseal the search warrant affidavit. On appeal, defendant maintains that the lower courts in camera review to determine whether to disclose the informants identity was improper because the informant did not testify. Additionally, defendant contends that probable cause did not support the search warrant because there was insufficient corroboration of the informant. Court affirm the judgment.

Plaintiff and appellant Dickey ODell Lee appeals from the judgment against him, following a jury verdict, and the denial of his motion for judgment notwithstanding the verdict in his action against his employer defendant and respondent ThyssenKrupp Elevator Corporation for alleged violations of the Fair Employment and Housing Act (Gov. Code, 12940 et seq.). Appellant contends there is no substantial evidence to support the jurys special verdict in favor of ThyssenKrupps health or safety defense and also that his interactive process claim was wrongfully rejected. Court affirm.

R.H., mother of S. G., appeals from the juvenile courts order terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. Appellant claims that because the juvenile court and respondent Sonoma County Human Services Department (the Department) failed to comply with the notice provisions of the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. 1901 et seq.), the order terminating her parental rights must be reversed.
Court agree with appellant that the Department failed to provide to the juvenile court information on which the court could base a decision as to whether proper notice had been given to the Indian tribes. Court therefore reverse and remand for such a determination.

Pursuant to a plea bargain defendant entered a plea of no contest to two counts of committing a lewd act upon a child under the age of 14 (Pen. Code, 288, subd. (a)). In accordance with the terms of the plea bargain, defendant was denied probation and sentenced to a term of five years in state prison. In this appeal he claims that the trial court erred by failing to hold a hearing on a request for substitution of counsel, and challenges the evidence to support the imposition of an order for AIDS testing. Court conclude that defendant did not make a motion for substitution of counsel, but agree with defendant and the Attorney General that the AIDS testing order is not supported by the evidence. Court therefore reverse that part of the judgment that ordered defendant to submit to AIDS testing, but otherwise affirm the judgment.

Petitioner Joseph Eli Morrow is charged with murdering his wife and with an enhancement alleging that the murder was committed for financial gain. On March 23, 2006, the Honorable Craig L. Parsons was scheduled to hear petitioners motion to dismiss the indictment pursuant to Penal Code section 939.71 and Johnson v. Superior Court (1975) 15 Cal.3d 248 (Johnson) [Johnson hearing or motion]. Before the Johnson hearing began, petitioner objected to Judge Parsons presiding over the trial. He based his objection on the fact that at the Johnson hearing he intended to call another San Mateo Superior Court judge, the Honorable John L. Grandsaert, who had been the deputy district attorney responsible for the case against petitioner from the beginning of that case until Judge Grandsaert was elevated to the bencha period of approximately 13 years. Petitioners motion to dismiss focuses on the prosecutors decision not to present allegedly exculpatory evidence to the grand jury and contends that this failure now requires that the indictment be dismissed.

Father Marc S. (Marc) appeals from the disposition findings and order of the Mendocino County Juvenile Court relating to him and his two children, A.S. and M.S. The order followed the filing of a petition by the Mendocino County Department of Social Services (the Department) pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g).The juvenile court ordered reunification services for mother Nicole V. (Nicole), but bypassed reunification services as to Marc, who was incarcerated in state prison at the time of the proceedings. Marc makes three arguments on appeal: (1) the jurisdictional allegations concerning domestic violence, his assault conviction, and his violent temper were unsupported by substantial evidence; (2) the juvenile court applied the wrong legal standard and therefore abused its discretion when it denied reunification services; and (3) the finding that reunification services for Marc would be detrimental to the children was unsupported by substantial evidence. Court reject each of Marcs arguments, and accordingly affirm.

This is a franchise tax refund case involving General Motors Corporation and its affiliated corporations (collectively, GM). The case is before us pursuant to a remand from the Supreme Court in General Motors Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 773 (hereinafter, General Motors), which affirmed in part and reversed in part the judgment of this court and "remand[ed] the case for further proceedings consistent with the discussion herein and in Microsoft Corporation [v. Franchise Tax Bd. (2006)] 39 Cal.4th 750 [hereinafter, Microsoft]" (General Motors, at p. 793), which was the companion case to the case herein.
The matter is remanded to the trial court to allow the Board to make its section 25137 case, and for the trial court to resolve the matter consistent with the discussion in the General Motors and Microsoft cases.

Los Angeles Municipal Code (LAMC) section 12.70 forbids the location of an adult entertainment business within 500 feet of a school. Grand Avenue Enterprises, Inc. (GAE) sought to open an adult entertainment concern in central Los Angeles. After issuing building permits to GAE, the Los Angeles Department of Building and Safety learned that the Los Angeles Unified School District had already obtained approval from the Division of State Architect to construct a middle school 150 feet from GAE's lap dancing cabaret. The Department of Building and Safety revoked GAE's permits prompting GAE to file a petition for writ of mandamus seeking to overturn the Department's action. The trial court denied the writ petition and granted the motion for judgment on the pleadings brought by defendant City of Los Angeles (the City) concerning GAE's claim for damages. GAE appeals. Court hold that the Department of Building and Safety abused its discretion in relying on LAMC sections 12.70 B(11) and hence 12.70C as the basis for revoking GAE's permits. Accordingly, court reverse the judgment.

Defendant appeals a judgment of conviction of kidnapping to commit carjacking, kidnapping to commit robbery, kidnapping, carjacking, second degree robbery, false imprisonment by violence, making criminal threats, and possession of a firearm by a felon, with findings of personal weapon use and the commission of criminal acts for street gang purposes. (Pen. Code, SS 209.5, subd. (a), 209, subd. (b)(1), 207, subd. (a), 215, subd. (a), 211, 236, 422, 12021, subd. (a)(1), 12022.53, subd. (b), 12022.5, subd. (a)(1), & 186.22, subd. (b)(1)(A).) Court remand for the calculation of Mora's sentence, presentence conduct and total custody credits, but otherwise affirm.

On February 27, 1998, Jacques Bailhe and Jason Brenna had an automobile accident. In December, Bailhe sued Brenna for property damage. Brenna's insurer, Mercury Casualty Company, retained counsel for Brenna (Marc Levine) and provided a defense.
Before trial, Mercury sent Bailhe two checks, one in June 1998 for $4,712.01, the other in November 1998 for $3,960. The November check had a box with the following notation: IN FULL SETTLEMENT OF P.D. CLAIMS ARISING OUT OF AN INCIDENT ON FEBRUARY 27, 1998
On August 22, Judge Marcus heard argument on the order to show cause he had issued, then told the lawyers he thought it ought to be heard by Judge Taylor. On October 29, the order to show cause was heard by Judge Taylor, who on November 20 issued an order imposing monetary sanctions against Mercury (not Brenna or Levine), as follows: "After reviewing the papers submitted, and hearing oral argument of counsel, the court determined that Mercury . . . did not comply with the court's judgment dated June 29, 2001. As a result, sanctions shall be awarded against Mercury in the amount of $5,000, to be paid to [Bailhe], and sanctions in the amount of $1,000 to be paid to the court . . . ." The sanctions were paid as ordered.

A lawsuit was filed against appellant Lan O'Kun, alleging that he vandalized parking spaces at a condominium complex where he resided. O'Kun tendered his defense to his insurer, respondent State Farm General Insurance Company, which it accepted. A coverage dispute arose between State Farm and O'Kun. State Farm gave O'Kun the election of 1) waiving any conflict and accepting retained counsel from State Farm at no cost, or 2) retaining independent counsel which State Farm would compensate at insurance defense rates pursuant to Civil Code section 2860.
Court consider whether a conflict occurred sufficient to trigger application of Civil Code section 2860, the propriety of State Farm's conduct in defending O'Kun, and his entitlement to costs incurred in defending the underlying action. Court modify the judgment but otherwise affirm.

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, S 245, subd. (a)(2)). The juvenile court ordered appellant's 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 a 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.

Defendants, appeal from their conviction for assault with a deadly weapon by means likely to produce great bodily injury. (Pen. Code, S 245, subd. (a)(1).) Mr. Wilkerson also appeals his convictions for three counts of child abuse (S 273a, subd. (a)) and one count of criminal threats. (S 422.) Ms. Nolette also appeals from her convictions for three counts of misdemeanor child abuse. (S 273a, subd. (b).) In addition, defendants appeal from the trial court's findings that both Mr. Wilkerson and Ms. Nolette were each previously convicted of serious felonies and served two prior prison terms. (SS 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. Nolette's arguments to the extent they accrue to his benefit. Court affirm the judgment.