CA Unpub Decisions

Samuel Herrera and his son, Arturo Herrera, appeal from the order denying their motion under Code of Civil Procedure section 473 to vacate the judgment against them and in favor of Arther Masaoka. They contend the trial court erroneously based its denial on its conclusion that they lacked a meritorious defense. Alternatively, they contend the default judgment is void for two independent reasons: (1) they had filed an answer and (2) Masaoka failed to serve a statement of damages. Court find the trial court made an erroneous legal assumption, resulting in an abuse of discretion. Accordingly, court reverse and remand.

When is a "party" a "party?" As we did in the prior related appeal, Gale v. Superior Court (2004) 122 Cal.App.4th 1388, court refer to the "parties" in this appeal, that is, Lee Gale (including to the degree he is indistinguishable from his living trust) as "Husband" and his erstwhile wife, Laura Gale (now Greenberg-Gale), as "Wife." This appeal, however, involves another, er, ''party," namely Husband's holding company, Management VI Properties, LLC, which challenges the postjudgment denial of an attorney fee order after a successful prosecution of a civil slander of title action against Wife in the wake of the prior related (family law) appeal. The attorney fee motion turned on whether Management VI is a "party," as the word is used in the attorney fee clause of Management VI's operating agreement, and on that score court affirm the trial court, concluding the company itself is not a "party" as the word is used in that clause. The operating agreement is plain that the only parties to the agreement itself are Husband's living trust and Wife.

A jury found Carlos Ivan Ortega guilty of one count of first degree murder (Pen. Code, S 187, subd. (a)), one count of first degree burglary (id., SS 459, 460, subd. (a)), and one count of first degree robbery (id., SS 211, 212.5). The trial court sentenced Ortega to a prison term of 25 years to life for the murder conviction, and stayed imposition of sentence on the other counts pursuant to Penal Code section 654.
Defendant challenges his conviction on one ground: He contends the "six pack" photographic lineup, from which three witnesses identified him soon after the crime, was impermissibly suggestive because his photograph's background was lighter and of a different color than the others. Court have carefully examined the photographic lineup, received in evidence as exhibit 49, and conclude the lineup was not impermissibly suggestive. In addition, court conclude the identification was reliable under the totality of the circumstances. Court therefore affirm the judgment.

Defendant appeals from the trial court's order denying his motion to vacate entry in California of a sister state judgment obtained by plaintiff Massachusetts Bay Commuter Railroad Company, LLC. Court affirm the order.

Court consider whether the trial court abused its discretion in determining the City of Huntington Beach (the City) properly issued a grading permit without conducting an environmental review of the permit's impact, pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, S 21000 et seq.). "The fundamental purpose of CEQA is to ensure 'that environmental considerations play a significant role in governmental decision-making' [citation]." (Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 797.) "CEQA must be interpreted to afford the fullest possible protection to the environment within the reasonable scope of statutory language. [Citation.]" (Day v. City of Glendale (1975) 51 Cal.App.3d 817, 823.)
The judgment is affirmed.

Farmers & Merchants Trust Company (F and M), the trustee of the Violet McNaughton Family Trust (trust), appeals from an order awarding trustee and attorney fees and costs of suit to First American Trust Company, FSB (First American), the trust's former trustee. F and M contends First American incurred the fees and costs after it had resigned as trustee, a purported settlement reached before First American resigned cannot support the award because the settlement is unenforceable, and the trial court erred in failing to rule on its evidentiary objections. Court conclude First American is entitled to recover fees and litigation expenses to the extent they arose from its residual duties as trustee, but not for its participation in unrelated legal proceedings. Since the trial court awarded a lump sum for all of First American's activities, the matter must be remanded to the superior court for further proceedings.

Petitioner (mother) seeks writ review (Welf. and Inst. Code, S 366.26, subd. (l); Cal. Rules of Court, rules 8.450 and 8.452) of orders issued at the 12-month review hearing, where the court terminated family reunification services and scheduled a .26 hearing to select a permanent plan for mother's four children, all under 10 years of age. Mother contends the evidence does not support the court's finding regarding the improbability of the children's safe return within the statutory period. She further contends the court substituted its own subjective standards as justifying its orders, rather than following the legislative mandate established by the relevant statutes.
The case presents an unfortunate situation in which mother's serious physical and mental health issues have contributed to her inability to provide the level of care her young children need to ensure their safety and well-being. During a previous dependency, Orange County Social Services (SSA) provided comprehensive supportive services to this family, particularly designed to meet their specific and far-ranging needs. Now, more than one year into the second dependency, the same issues relating to mother's health and attendant neglect continue to place the children at risk. The juvenile court correctly decided there was no reasonable expectation of the children's safe return within the statutory period, and it was time to move the case forward to a permanent plan.

A jury convicted defendant of attempted lewd act on a child aged 14 or 15 while being at least 10 years older. Thereafter, the trial court found true allegations that defendant had suffered six prior convictions for purposes of the Three Strikes law. It sentenced defendant to 25 years to life in prison. On appeal, defendant contends that the trial court erred by (1) failing to instruct the jury on the lesser-related offense of misdemeanor child molestation, and (2) admitting over objection evidence of a prior sexual offense. Court disagree and affirm the judgment.

This appeal is brought by the father of three dependent children. He seeks reversal of the juvenile court's order terminating his visitation with the two older children following his incarceration. For reasons explained below, court affirm the challenged order.

Defendant pled no contest to second degree robbery (Pen. Code, S 211) arising from his armed theft from a Holiday Inn employee.
At the time of his plea and sentence, defendant was serving a six-year sentence for another robbery conviction sustained in Alameda County. Although defendant committed the robbery in the instant proceeding before the Alameda County robbery, the Alameda matter apparently proceeded to judgment first.
The trial court sentenced defendant in the instant action to the midterm of two years, to run consecutively to his sentence in the Alameda County matter. Both parties request remand for resentencing. Under the circumstances, court grant that request.

Plaintiff appeals the denial of his petition pursuant to Government Code section 946.6 for relief from the claims requirements of the Government Tort Claims Act. (Gov. Code, SS 810 et seq.) Court affirm the order.

Following a contested jurisdictional hearing, the juvenile court sustained charges that 15-year-old K.F. drove without a license, a misdemeanor, at an unsafe speed for conditions, an infraction. (Veh. Code, SS 12500, subd. (a), 22350.) K.F. was placed on six months probation and ordered to perform 36 hours of community service, pay a $25 restitution fine and make restitution to the victim in the amount of $952.84.
Plaintiff"s sole contention on appeal is that the restitution award is not supported by substantial evidence. Court affirm the judgment.

Defendant pleaded guilty to one count each of perjury by declaration (Pen. Code, S 118, subd. (a), conspiracy (S 182, subd. (a)(1)), filing a false instrument (S 115, subd. (a)), and grand theft (S 487, subd. (a)) in connection with his efforts to transfer title to a residence to himself and his wife. The court sentenced Williams to a determinate prison term of 5 years, 8 months in prison, and, following a contested restitution hearing, ordered him to pay direct victim restitution of $69,465.39 to the residence's owner, Christine Minnifield, and $12,582.57 to Jesse Trujillo, to whom Williams attempted to sell the property. On appeal, Williams contends the restitution award to Minnifield for loss of rental income and payment of certain expenses is not supported by a sufficient factual foundation as to the property's rental value, and other restitution for gross profits would result in a windfall to the victim. Appellant further contends we should modify the restitution award for attorney fees because there is insufficient evidence to establish the fees were reasonable and for legal work related to his unlawful conduct. Court affirm the order.

Defendant pleaded guilty to the charge of possession for sale of a controlled substance (Health and Saf. Code, S 11351) after the denial of his motion to suppress evidence (Pen. Code, S 1538.5). Dorn appeals the judgment, contending the motion to suppress was incorrectly denied because the evidence was illegally obtained in a warrantless search. (Pen. Code, S 1538.5, subd. (m).) He argues the (1) detention, (2) patdown search, and (3) arrest and subsequent search were unreasonable under the Fourth Amendment to the United States Constitution. Court affirm.