CA Unpub Decisions

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 Saunders's 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, court find Ms. Ringgold is not authorized to pursue this appeal on Ms. Saunders's behalf. As a result, the appeal is dismissed as to Ms. Saunders.

Appellant, Steven N., admitted the allegations in a juvenile delinquency petition (Welf. and Inst. Code, S 602) that when he was 12 years old he committed a lewd act upon a child (Pen. Code, S 288, subd. (a); count 1) and orally copulated a person under the age of 14 (Pen. Code, S 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 (S 790), or about the court's 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 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 defendant's sentence is improper, court modify the judgment, but court otherwise affirm it.

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 appellant's incriminating statement that was provoked by the arresting deputy's conduct in violation of appellant's 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 (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 County's cross complaint, there is no final judgment in the action. In order to resolve this matter on the merits, court treat the purported appeal as a petition for writ of mandate. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, SS 77, 88, pp. 131 to 132, 147 to 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 Banko's conduct did not constitute substantial compliance. Therefore, Banko's 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, SS 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 court's "sentencing decision"; he did not obtain a certificate of probable cause. The appeal is dismissed.

Appellant, 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 appellant's 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.

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 court's express finding that there was insufficient evidence to establish a prescriptive easement. Court affirm the judgment.

Appellant, the mother of A.H. (the minor), appeals from juvenile court orders terminating her parental rights. (Welf. and Inst. Code, SS 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 Cafe (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.
High Tide appeals, contending the judgment should be reversed because (1) the phrase "in the event a sale . . . is accomplished" in the listing agreement unambiguously conditioned High Tide's payment of a commission to G.R. Bill on a completed or consummated sale; (2) the consummation of a sale means payment of the purchase price and conveyance of title, and thus the sale of High Tide's business was never completed or consummated because the buyer breached the contract; and (3) G.R. Bill was not entitled to an award of attorney fees because the listing agreement did not contain an attorney fees provision, and G.R. Bill was not an intended third party beneficiary of the purchase agreement or escrow 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.

Appellant Phillip C. Sanders appeals from the dismissal of his action against respondents Stuart Ryan, the warden at Calipatria State Prison (CSP), Gerald Janda, the associate warden at CSP, and Mary Sosa, a correctional officer at CSP. Sanders ordered specialty food items from a joint Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) food sale that was held at the prison as part of a fundraiser. The food items were to be distributed on May 1, 2005. However, the food items were not delivered to Sanders because personnel at CSP determined that the food was contaminated. After the contamination was discovered, CSP prepared similar food items to distribute to inmates. Sanders refused to accept the substitute food items and sought a refund of the $21.50 he had paid for the food. After he was denied a refund, Sanders filed a complaint for breach of contract and concealment, naming as defendants Ryan, Janda, and Sosa individually, as well as Alcoholics Anonymous World Services, Inc. and Narcotics Anonymous World Services, Inc. Sanders attached to his complaint a copy of the order form for the food items. He alleges that the order form constitutes a contract between him and the defendants.
The three individual respondents demurred to Sanders's complaint, contending that Sanders failed to allege facts sufficient to state a cause of action for breach of contract or concealment against them. The trial court sustained the respondents' demurrer and dismissed them from the case, with prejudice. The court also found that Sanders had previously been determined to be a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b)(1), and issued a prefiling order requiring Sanders to obtain leave of court before filing any further litigation.
Sanders appeals from the trial court's judgment, contending that he did sufficiently state causes of action for breach of contract and concealment as to respondents, and claiming that the trial court erred in finding him to be a vexatious litigant and/or in entering a prefiling order.
Court conclude that Sanders failed to state facts sufficient to maintain his causes of action against the three respondents. Court further conclude that the doctrine of collateral estoppel prevents Sanders from relitigating his status as a vexatious litigant, and that the trial court did not err in issuing a prefiling order pursuant to the vexatious litigant statute. Court therefore affirm the judgment.

PROCEEDINGS for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Referee. Petition denied. Request for stay denied.
Gloria R. seeks review of juvenile court orders terminating her reunification services and setting a Welfare and Institutions Code section 366.26 hearing regarding her children, Felicity D., Lorenzo D., Jr. (Lorenzo, Jr.), and Michael D. In her petition for extraordinary writ relief (S 366.26, subd (l); Cal. Rules of Court, rule 8.452), Gloria contends the court erred by not extending services for another six months. She argues there was no showing that returning the children to her posed a substantial risk of detriment and there was a substantial probability they could be returned by the 18 month date.
Court issued an order to show cause, the San Diego County Health and Human Services Agency (the Agency) responded and both parties waived oral argument. Court deny the petition.

The City of Palm Springs (the "City") brought a condemnation action against landowners to acquire property for a project to expand the operating capabilities of the City's regional airport. Ronald Miller ("mller" is one of those landowners. The only issue tried was the value of Miller' property that was taken. The jury determined that the value was $209,500. Miller appeals.