CA Unpub Decisions

Defendant appeals from an order denying his request for relief from default, and from orders denying his several motions for reconsideration. Defendant asserts that the trial court had no choice but to grant the relief requested because he filed an attorney affidavit of fault under Code of Civil Procedure section 473, subdivision (b). He further claims that the default was entered too soon because the time for his response had not yet passed, that plaintiff Proper T View, Inc.'s (PTV) seeking entry of default immediately after service was completed mandates that the default be set aside, and that since only slight evidence is required to justify setting aside a default, the trial court erred. Court affirm.

Police officers entered the apartment of defendant and secured the premises during a two hour wait for a search warrant. After defendant's motion to suppress evidence was denied, he entered a guilty plea to possession of methamphetamine for purposes of sale (Health and Saf. Code, S 11378). On appeal, he challenges the trial court's denial of the suppression motion, contending (1) the officers entered his apartment without complying with knock-notice requirements; (2) the search warrant was not supported by probable cause because it was based on information collected after (a) the officers' illegal warrantless entry and (b) the officers' illegal arrest of defendant. Lastly, defendant contends that because the statement of probable cause omitted critical information, the trial court erred by denying his motion to traverse the search warrant. After reviewing the sealed portion of the statement of probable cause, court affirm.

Sometime between June 9, 1990, and June 8, 1991, appellant Gray entered the bedroom of C., who was then 11 years old, and masturbated in front of her. Sometime between June 9, 1991, and June 8, 1992, Gray entered her room five to six times while she was sleeping and orally copulated her.
Following independent review of the record court find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.

CTX Mortgage Company (CTX) appeals from judgments following the court's orders dismissing the action against (1) Martha Rodriguez under the five year statute, Code of Civil Procedure section 583.310 and (2) Ronald A. and Judith E. Perlstein (collectively, the Perlsteins) after sustaining the Perlsteins' demurrer to the third amended complaint without leave to amend. With regard to the five_year dismissal, CTX contends the statute was tolled for a number of reasons. Court disagree and affirm the judgment in favor of Rodriguez. As for the demurrer based dismissal, CTX asserts its causes of action were adequately pleaded. Finding some of the arguments meritorious, court reverse the judgment for the Perlsteins in part, and remand with directions to the court to overrule the demurrer, except with respect to the cause of action for negligent misrepresentation.

Court appointed counsel to represent Defendant on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client, but advised the court no issues were found to argue on his behalf. Court invited Defendant to file a supplemental brief, which he did. Defendant's supplemental brief is somewhat unusual as it appears to have been penned by a person other than Chavez. The brief begins, "I Mr. Lozolla am writing this for Mr. Chavez." Court also note that statements are made throughout the brief using both the first and third persons thereby creating confusion as to what statements are Defendant's assertions and what are merely Court have also independently examined the record. Court found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Court affirm the judgment.

Plaintiff (hereafter, appellant) filed suit against An Sik Shin and his real estate corporation, Kor-Am Property and Investments, Inc. (together, respondent), contending that respondent breached fiduciary duties and duties of fair dealing towards her when he acted as her real estate broker and investment advisor in the course of several real estate transactions. A bench trial was held spanning eight days, during which the trial court carefully considered the testimonies of the principal parties in this case. The court then issued a detailed statement of decision resolving all credibility issues against appellant and finding that appellant had failed to carry her evidentiary burden of showing the existence of a duty of care or a fiduciary duty, or any breach of those duties.
On appeal from the judgment, appellant contends that the trial court's findings were in error because the existence of a duty was established as a matter of law, and because evidence supported findings that duties were breached in the various transactions. After reviewing the record in this case, court conclude that it supports the judgment, and court therefore affirm.

On April 28, 2003, a petition pursuant to Welfare and Institutions Code section 602 was filed in Santa Cruz County alleging that the minor, Franky V., then age 12, committed misdemeanor vandalism (Pen. Code, S 594, subd. (a); count 1),and misdemeanor trespass (Pen. Code, S 602, subd. (l); count 2). On July 3, 2003, the minor admitted the allegations as to count 2. The juvenile court declared the minor to be a ward of the court and ordered him placed in a group home.People v. Wende (1979) 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, court have reviewed the entire record and have concluded that there is no arguable issue on appeal.

Appellant appeals a judgment entered after the superior court sustained challenges by defendants (collectively Kawesch) to her claims for medical negligence and fraud on statute of limitations grounds. Thomas contends that the complaint alleged sufficient facts to show that her action was timely filed. Court hold that the court erred in dismissing Thomas's medical malpractice cause of action because her existing allegations are sufficient to establish delayed accrual of the alternative three year and one year limitations periods applicable to such a cause of action. Court also conclude that her allegations are sufficient to establish her delayed discovery of her fraud cause of action, making it timely as well. Accordingly, court reverse the judgment and remand the matter for further proceedings.

Appellant appeals after the juvenile court ordered permanent plans of legal guardianship for his minor daughters and another permanent planned living arrangement for his minor son. under Welfare and Institutions Code section 366.26. (Statutory references are to the Welf. and Inst. Code unless otherwise specified.) Appellant contends the court erred by giving complete discretion to Virginia and Ashley's legal guardians to determine the frequency and duration of his visitation. Appellant further contends the court and the San Diego County Health and Human Services Agency (Agency) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. S 1901 et seq.).
Court conclude the court's visitation order failed to specify the frequency and duration of Steven's visits with the minors. Court further conclude the court and Agency did not comply with ICWA's notice requirements. Accordingly, court reverse the judgment and remand the matter for a new visitation order that specifies the frequency and duration of visits and for proper ICWA notice.

A jury convicted defendant of one count of felony possession of methamphetamine (Health and Saf. Code, S 11377, subd. (a), count 1) and one count of possession of a hypodermic needle and syringe (Bus. and Prof. Code, S 4140, count 2). Furthermore, the trial court found that defendant was in violation of his probation. The court sentenced defendant to the upper term of three years in state prison on count 1 and to a concurrent term of six months on count 2. The court also sentenced defendant to three consecutive terms of eight months each on three matters involving the probation violations.
On appeal, defendant contends that: 1) the trial court abused its discretion in admitting evidence of his prior possession of methamphetamine under Evidence Code section 1101, subdivision (b); 2) there was insufficient evidence to prove that he had knowledge of the presence of the methamphetamine and syringes, or that he possessed them; and 3) the court erred in imposing the upper term and consecutive terms, pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Court affirm.

In 2002, defendant pled no contest to the misdemeanors of assault by means likely to produce great bodily injury (Pen. Code, S 245, subd. (a)(1)) and brandishing a deadly weapon (Pen. Code, S 417, subd. (a)(1)). At the time his pleas were accepted, the trial court noted that one of the terms of probation was that defendant be returned to court for a restitution hearing, which was scheduled for June 17, 2002. On that date, the trial court ordered defendant to make restitution to the Victims Compensation and Government Claims Board in an amount the Board determined, plus 10 percent. By December, 2003, the victim had made a claim to and been paid by the Board in the amount of $7,226, which the People requested the defendant be ordered to pay to the Board. The matter was continued until July 27, 2005. At a hearing on that date, defendant claimed, inter alia, that admission of redacted copies of two bills for dental work performed on the victim and a letter from the custodian of records at the Board, signed under penalty of perjury, certifying that these bills were submitted to and paid by the Board, violated his right to confrontation under Crawford v. Washington (2004) 541 U.S. 36.(Crawford) The trial court found there was no violation of Crawford and ordered defendant to pay the Board $7,226. Defendant appealed from this ruling. The restitution order is affirmed.

A jury found defendants guilty of murder in connection with the shooting death of Pedro Bravo. The jury found defendant Salazar guilty of first degree murder and further found true a special circumstance allegation that he committed the murder while an active participant in a criminal street gang and to further the activities of that criminal street gang (Pen. Code, S 190.2, subd. (a)(22)). The jury found defendant Camarena guilty of second degree murder. As to both defendants, the jury found true special allegations that each defendant personally and intentionally discharged a firearm causing death (S 12022.53, subd. (d)), personally and intentionally discharged a firearm (S 12022.53, subd. (c)), and committed the crime for the benefit of and with the specific intent to promote, further, and assist any criminal conduct of a criminal street gang (S 186.22, subd. (b)). The trial court sentenced defendant Salazar on the first degree murder conviction to life in prison without the possibility of parole, plus a consecutive term of 25 years to life on the finding that he personally and intentionally discharged a firearm and caused death. The trial court sentenced defendant Camarena to serve 15 years to life on his conviction for second degree murder plus a consecutive term of 25 years to life on the finding that he personally and intentionally discharged a firearm and caused death.
Defendants individually and jointly raise various claims of error in this appeal, the details of which we recount below in our discussion of those claims. Court conclude, for reasons court now explain, that except for two minor sentencing issues raised by defendant Salazar, defendants' claims are meritless. Therefore, court affirm the judgment as to both defendants but with modifications as to defendant Salazar.

The simple facts of this case are that plaintiff hired defendants (Pope) to auction his personal property. The net profits from two auctions were $41,812.51 but plaintiff refused the proceeds when Pope tendered them to him.
Instead, plaintiff sued Pope for various causes of action, including breach of contract for damages of $258,000. After trial, the jury found in favor of Pope, rejecting Plaintiff's claim for damages beyond the amount of the net proceeds. Subsequently, the trial court granted Plaintiff's motion for judgment notwithstanding the verdict (JNOV) and entered judgment in his favor for the unpaid $41,812.51.
Court reject Pope's appeal, in which he tries to argue that Plaintiff did not sue to recover $41,812.51 but instead sought other damages and lost on those claims. Court agree with Plaintiff and the trial court that the evidence demonstrated Plaintiff was entitled to recover the actual net proceeds from the auction. Therefore, the trial court properly granted Plaintiff's JNOV motion. Court also reject the cross appeal in which Plaintiff seeks prejudgment interest. Court affirm.

Defendant appeals her conviction of one count of receiving a stolen vehicle. (Pen. Code, S 496d, subd. (a).) Defendant's appointed counsel has filed a brief under Anders v. State of California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] and People v. Wende (1979) 25 Cal.3d 436, requesting this court to undertake a review of the entire record. Court's independent evaluation of the record discloses no basis for reversal. The judgment is affirmed.