CA Unpub Decisions

In this dispute between property owners in a wooded subdivision, the superior court granted summary judgment to the owners of three of the lots, finding no enforceable restriction on the growth of trees and shrubs. Plaintiffs appeal, contending that the superior court should have recognized mutual equitable servitudes that protect the view from their home. Court affirm the judgment.

Plaintiff tripped on a metal doorstop while exiting a defendant's restaurant and suffered injuries requiring three surgeries.
Plaintiff appeals from an order granting defendant's summary judgment motion. (Code Civ. Proc., S 437c.) She argues there was a triable issue of material fact about whether the doorstop constitutes a trivial defect. Based on our independent review, court hold there was no triable issue of material fact. As a matter of law, the doorstop, either one half inch or one and one half inches tall, was a trivial defect.

Defendant appeals the judgment entered following his plea of no contest to one count of unlawful possession of a firearm. (Pen. Code, S 12021, subd. (a)(1).) Court reject defendant's claim of error in the denial of his motion to suppress evidence and affirm the imposition of a three year prison term.

On January 17, 2006, appellant stole approximately $3,500 from two women who were preparing to make a night deposit at a bank in Tuolumne County. As a result, a jury convicted him of second degree robbery (Pen. Code, S 211), and he was sentenced to the upper term of five years in prison. He now appeals, claiming imposition of the upper term violated his constitutional rights. For the reasons that follow, court affirm.

Rita H. appeals from an order terminating her parental rights (Welf. and Inst. Code, S 366.26) to her infant son Nathan M. She contends the court erred: first, by denying her petition for modification (S 388); and second, by not finding termination would be detrimental to the child. On review, court affirm.

The parties have stipulated that a judgment granting attorney fees to the prevailing party in an anti SLAPP action be dismissed in order to facilitate a settlement. This appeal is a companion to our appeal in G036053, which involves the same settlement.
Court accept the stipulation pursuant to Code of Civil Procedure section 128, subdivision (a)(8), and grant their request for a stipulated reversal. (Union Bank of California v. Braille Inst. of America, Inc. (2001) 92 Cal.App.4th 1324, 1328; In re Rashad H. (2000) 78 Cal.App.4th 376, 381.)
The order granting attorney fees to defendant is reversed pursuant to the parties' stipulation, and the remittitur shall immediately issue when this opinion becomes final in this court.

Plaintiff appeals from an order denying his petition to vacate an arbitration award entered in a dispute with his uninsured motorist insurance carrier, defendant Continental Insurance Company. Plaintiff contends that the court erred when, on the eve of arbitration, it ordered him to pay half of the arbitrator's fee. He further contends that the court erred when it refused to vacate the arbitration award based upon the supposed error in requiring him to pay this fee. Court are unable to reach the merits of plaintiff's contentions because the order directing payment was a collateral order from which an immediate appeal would have lain. As a result, court lack jurisdiction to review it on appeal from the order denying his petition to vacate, and the appeal must be dismissed insofar as it concerns that order. Nor can error in the denial of his petition to vacate be predicated on supposed error in an earlier, appealable order from which no relief was sought by appeal or otherwise. Accordingly, to the extent court have appellate jurisdiction, the orders appealed from affirmed.

A jury convicted defendant Gregory Moore of one felony count of possessing a controlled substance, methamphetamine, (Health and Saf. Code, S 11377, subd. (a)) and one misdemeanor count of possessing drug paraphernalia (Health and Saf. Code, S 11364, subd. (a)). Right before the trial commenced, defendant made a Marsden motion to discharge appointed counsel. After a hearing, the court denied the motion. At trial, defendant admitted he had one prior serious felony conviction within the meaning of the Three Strikes law (Pen. Code, SS 667, subds. (b) (i); 1170.12) and had served a prior prison term (Pen. Code, S 667.5, subd. (b)).
The trial court sentenced defendant to four years in prison on the felony count (twice the mid term because of the strike prior) and a concurrent term of six months on the misdemeanor count. The court struck the additional punishment for the prior prison term.
Defendant contends the trial court erred in denying his Marsden motion. Court affirm.

Appellant Lynda Colletta and respondent Andrew Colletta stipulated that attorney Victor Castro would be appointed temporary judge of the superior court to settle their marital dissolution action. After the settlement conference held March 7, 2005, the parties reached a settlement agreement that resolved a number of issues. A stipulated judgment incorporating the settlement agreement was entered by Temporary Judge Victor Castro (hereafter Judge Castro). Among other things, the judgment ordered Lynda to pay Andrew monetary sanctions in the amount of $33,000.
On appeal, Lynda contends that the trial court erred in referring the motion to set aside the sanctions portion of the judgment to Judge Castro. She also contends that Judge Castro erred in denying the motion. For reasons that court explain, court find no error and therefore affirm.

Following the revocation of his probation, defendant Anthony Lee Fuller was sentenced to prison and ordered to pay a $400 restitution fund fine. On appeal, defendant challenges the imposition of that fine, asserting that it was not part of his plea bargain. As explained below, court agree that the fine must be reduced to $200, the statutory minimum, though not for the reasons that defendant proffers. Defendant also asserts the need to correct the abstract of judgment, a point that the People concede. Court order the judgment modified and affirm it as modified.

Defendant pleaded no contest to possession of a controlled substance in prison (Pen. Code, S 4573.6) and was granted probation on the condition, among others, that she "not . . . associate with persons who traffic in or use controlled substances." Defendant's sole contention on appeal is that the condition is unconstitutionally vague because it does not contain a knowledge requirement. Court agree. Court modify the condition to add the necessary language and, as modified, affirm the judgment.

Petitioner attempted to file a request for appointment of counsel to investigate and prepare a motion for postconviction DNA testing as allowed by Penal Code section 1405. For unexplained reasons, the superior court failed to file his motion and returned it to him instead. Petitioner has sought relief in this court by way of a petition for writ of mandate. Court issue a peremptory writ in the first instance directing the respondent court to file petitioner's motion and to consider its merits.
Petitioner has also filed a motion in this court, asking this court to directly appoint counsel for DNA testing. Court deny the motion.

After entering into a plea agreement, defendant pleaded no contest to two felonies, resisting an executive officer by means of threats and violence (Pen. Code, S 69) and carrying a concealed dirk or dagger (S 12020, subd. (a)(4)). He also admitted a prior prison term allegation (S 667.5, subd. (b)). The trial court sentenced defendant to the agreed upon aggregate term of two years, four months.
On appeal, defendant contends that (1) the People's failure to file an information deprived the trial court of jurisdiction; and (2) the $400 restitution fine must be reduced to the statutory minimum of $200 because the restitution fine was not specified in the plea agreement. For reasons that court explain, court find no merit in defendant's contentions and therefore court affirm the judgment.

A modification decision.