CA Unpub Decisions

Plaintiff sued defendant for breach of an implied contract prohibiting termination of her employment without good cause. Defendant moved for summary judgment on the ground that plaintiff's employment was terminable at will. The trial court granted the motion. On appeal, plaintiff contends that she raised a triable issue of fact. Court disagree and affirm the judgment.

Appellant, a contractor doing business as Stern Electric, appeals from a judgment entered after the trial court granted summary judgment in favor of defendant Contractors State License Board (CSLB) and denied appellant's motion for summary judgment. CSLB had suspended appellant's contractor's license, pursuant to Business and Professions Code section 7071.17 (hereafter section 7071.17), due to an unsatisfied judgment against him. However, prior to the filing of his amended complaint for declaratory relief, the judgment was set aside and CSLB reinstated appellant's license. On the cross motions for summary judgment, the court found that appellant could not maintain his action for declaratory relief against CSLB because his license had been reinstated. Therefore, there was no "actual controversy" relating to the legal rights and duties of the parties. (Code Civ. Proc., S 1060.) Appellant also sought relief under Government Code section 11350, subdivision (a), which provides a means for obtaining a judicial declaration as to the "validity of any regulation" of an administrative agency. However, the court found that appellant could not maintain his action under this statute because he was not challenging a "regulation" within the meaning of that statute.
On appeal, appellant claims that this was a proper action for declaratory relief. Appellant contends that CSLB's policy of applying section 7071.17 to automatically suspend the licenses of contractors who have unsatisfied judgments against them is tantamount to a "regulation," and can therefore be challenged in a declaratory relief action under Government Code section 11350, subdivision (a). He further argues that CSLB's practice of suspending a contractor's license without a hearing works a deprivation of due process.
For reasons court explain below, court reject appellant's arguments. Court find that this was not a proper action for declaratory relief and court therefore affirm the judgment of the trial court.

Defendant pleaded guilty to a nonexistent count. An information charged him with one count each of felony elder abuse by a caretaker (Pen. Code, S 368, subd. (b)(1)) and misdemeanor resisting an officer (S 148, subd. (a)(1)). The court severed the counts before trial, consolidating the resisting an officer count with a similar count charged in a separate matter. (S 954.) The minutes show count 2 (resisting an officer) was "deleted" from the elder abuse case. The parties later entered into a plea agreement. As part of the plea agreement, the felony elder abuse count was dismissed and defendant pleaded guilty to the severed/consolidated/deleted count. Defendant contends this is a "readily apparent" error. The Attorney General concurs. It submitted a one paragraph letter brief, stating it "has no objection to this Court ordering this misdemeanor conviction be stricken."

Defendant was convicted by a jury of failure to register as a sex offender. (Pen. Code, S 290.) The court found that defendant had suffered three strike convictions, and served two prior prison terms. The court struck two of the strikes and sentenced defendant to eight years in prison, consisting of the aggravated term of three years for the registration offense, doubled with the strike conviction, plus two consecutive one year prison prior enhancements. Defendant contends that: the registration conviction is not supported by substantial evidence; the jury instructions were flawed; his counsel was incompetent; his sentence must be reduced to a misdemeanor; and one of the sentence enhancements must be stricken. Court agree only with the argument as to the sentence enhancement. Court therefore strike the enhancement, and affirm the judgment as so modified.

Appellant appeals from a judgment of the Alameda County Superior Court granting in part and denying in part his petition pursuant to Probate Code section 850 to recover property, for imposition of a constructive trust, for double damages and for financial elder abuse against respondents Winniefred Smit and Michael Smit. Ronald and Winniefred are the children of decedents Eveline and Max Schenkhuizen. Michael Smit (sometimes referred to as Michael Smith) is Winniefred's son. At the time this petition was filed, Winniefred and Michael each held sole record title to one of two separate parcels of property (the Omar Street property and the Santa Rosa Way property) pursuant to separate joint tenancy deeds executed by Eveline. The trial court held Eveline and Max had been competent to execute the various documents and transfers, that the transfer of the Santa Rosa Way property was not the product of undue influence by Winniefred, and that each deed was validly executed and each was validly delivered.
Ronald contends on this appeal that there is no substantial evidence to support the court's findings that the two deeds were validly delivered. He further contends that the trial court erred in failing to make any finding in its statement of decision that the transfer of the Omar Street property was intended or understood to be irrevocable.
Court affirm the judgment.

Appellants (Mason) and Kenneth Burton, husband and wife, own real property abutting Sanford Ranch Road, near Ukiah in Mendocino County. Directly behind and uphill from appellants' property are two lots owned by respondents that are accessed only via an easement across appellants' property. Appellants commenced a declaratory relief and quiet title action in the superior court raising several issues regarding the scope and nature of the easement across their land. The court sustained respondents' demurrer to appellants' complaint without leave to amend on the basis that the issues raised by appellants' action had either been effectively decided, or could have been decided, in previous litigation and, hence, their complaint was barred by collateral estoppel. Court affirm on this and one other ground presented by the record.

Petitioner filed a petition for writ of mandate and/or prohibition seeking relief from the trial court's order of December 1, 2006, appointing a discovery referee for all further discovery purposes with the exception of two pending motions. The order states that the court was acting on its own motion due to the significant number of discovery motions already on file. The order further states: "Exceptional circumstances for appointment of a referee exist as a result of the inordinate number of discovery motions already filed and the difficulties the parties have encountered in conducting discovery without the need for court intervention. . . ." The order ends by stating: "There has been no finding that any party has established an economic inability to pay a pro rata share. The maximum hourly rate the referee may charge is $650."
peremptory writ of mandate issued commanding respondent court to vacate its order appointing a discovery referee. The temporary stay of the order previously imposed is hereby dissolved. Petitioner is awarded costs. (Cal. Rules of Court, rule 8.490(m).) Our decision is final as to this court immediately. (See Cal. Rules of Court, rule 8.264(b)(3).)

Appellant appeals from an order declaring him to be a vexatious litigant and requiring that he post a $150,000 bond or suffer dismissal of his cross complaint, and from the subsequent order dismissing his cross-complaint. Court find the orders supported by the evidence and a proper exercise of the trial court's discretion, and affirm.

Plaintiff and appellant Teresa Meza (plaintiff) sued a number of defendants in relation to alleged toxic tort injuries. Plaintiff alleged that as a result of occupational exposure to plastic dust and fumes, she contracted asthma and interstitial pulmonary lung fibrosis.
Following an evidentiary hearing, the trial court ruled that the testimony of plaintiff's expert witnesses on medical causation was not admissible. The court found that the proffered testimony was conclusory and lacked foundation. The court further found that plaintiff failed to show she had or could obtain admissible expert evidence to establish causation. The trial court dismissed the case and entered judgment in favor of defendants and respondents.
On appeal, plaintiff contends the trial court erred substantively, asserting that the testimony of her expert witnesses on medical causation was not conclusory; that the testimony was supported by sufficient foundation; and that plaintiff's experts presented sufficient testimony to show to a reasonable degree of medical probability that her occupational exposure to plastic dusts and fumes was a substantial factor in causing her asthma and interstitial pulmonary fibrosis. Plaintiff also contends the trial court erred procedurally by the manner in which it conducted the evidentiary hearing.
Court reverse and remand. The opinions of plaintiff's expert medical causation witnesses were not speculative or conclusory. Plaintiff's expert medical witnesses set forth a reasonable explanation of why plaintiff's exposure to the products was more likely than not the cause of her asthma and lung disease. The opinions were therefore supported by sufficient foundation.
Court have no occasion to address plaintiff's contentions regarding whether the trial court erred procedurally by the manner in which it conducted the evidentiary hearing.

A modification decision.

This is an appeal from a defense judgment in a breach of contract action arising from a failed real estate sale. Wilbur W. Lorbeer, the plaintiff buyer, argues there is insufficient evidence to support the trial court's findings. Court find substantial evidence to support the trial court's finding that the seller did not agree to the contract upon which the plaintiff sued. In light of that conclusion, court do not reach other arguments related to alternative findings and conclusions by the trial court.

Defendant, also known as Mallory Rhodes, appeals from the judgment entered upon a jury verdict that resulted in his conviction of injury to a telephone line (Pen. Code,S 591), vandalism over $400 (S 594, subd. (a)) and petty theft with a prior (S 666). Appellant admitted a prior felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and four prior prison terms within the meaning of section 667.5, subdivision (b). Defendant was sentenced to an aggregate state prison term of 10 years, calculated as follows: a concurrent upper term sentence of three years, doubled as second strike, on each of the three convictions plus four years for the four 1year prior prison term enhancements.

Defendant appeals from a judgment entered upon his convictions by jury of two counts of second degree robbery (Pen. Code, S 211, counts 1 & 2) and one count of being a felon in possession of a firearm (S 12021, subd. (a)(1), count 3). In connection with the robbery counts, the jury also found to be true the allegation that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b). The trial court sentenced appellant to 16 years in state prison. Appellant contends that his counsel's failure to present an expert on the weaknesses of eyewitness identifications constitutes ineffective assistance of counsel. Court affirm.

Defendant and Johnny Armenta appeal from judgments entered following the convictions by jury of Edgar Moises Armenta on count 1 possession of a controlled substance for sale (Health and Saf. Code, S 11378) personally armed with a firearm (Pen. Code, S 12022, subdivision (c)), and count 2 possession of a controlled substance with a firearm (Health and Saf. Code, S 11370.1, subd. (a)), and the conviction by jury of Johnny Armenta on count 1 possession of a controlled substance for sale (Health and Saf. Code, S 11378) with a court finding he suffered a prior felony conviction (Pen. Code, S 667, subd. (d)). The court sentenced Edgar Moises Armenta and Johnny Armenta to prison for eight years and six years, respectively.