CA Unpub Decisions

Appellant appeal from the judgment entered after the trial court dismissed the appellant' claims against the Regents of the University of California and UCLA (collectively the Regents) for the appellants failure to prosecute the case. Before this court the appellants do not directly challenge the dismissal. Instead, they claim the trial court committed reversible error when, prior to the dismissal, the court denied their request to enforce a purported oral settlement agreement with the Regents. The appellants assert that on March 2, 2004, they and the Regents reached a settlement agreement on the record in open court. They assert the settlement contained only three terms (1) a payment of $199,000; (2) a waiver of costs by each side; and (3) the dismissal of the action. The Regents contend, on the other hand, the purported settlement contained these terms and several others, chief among them, a term for the conditional waiver of doctor/patient privilege. At the hearing on the appellants' request to enforce their version of the settlement agreement, the court concluded the privilege waiver was a term in the oral settlement agreement. Consequently, the court denied the appellants' request.

Plaintiff (Bivens) appeals the judgment and cost award in his action under the Unfair Competition Law (UCL) (Bus. & Prof. Code, S 17200) and the False Advertising Law (FAL) (Bus. & Prof. Code, S 17500). The trial court granted defendants' motion for judgment on the pleadings because the passage of Proposition 64 on November 2, 2004, while the case was pending, deprived plaintiff of standing to bring an action based upon alleged deceptive packaging of Sharpie pens. On appeal, plaintiff contends that the trial court abused its discretion in refusing to permit amendment to substitute a plaintiff with standing, and that in light of the retroactive application of Proposition 64's changes, any award of costs was a violation of due process and constituted a bill of attainder. Court reverse, finding the trial court erred in refusing to permit amendment.

Defendant appeals an order of the trial court vacating a dismissal of the action. Plaintiff Ogden Page's attorney dismissed the action without plaintiff's knowledge before an arbitration award could be affirmed or challenged. Appellant challenges the trial court's vacation of the dismissal under its equitable powers, contending that the dismissal was not procured by extrinsic fraud or mistake. Court affirm.

Defendant, convicted of second degree murder (Pen. Code, S 187), appeals his conviction on the grounds of erroneous evidentiary rulings and ineffectiveness of counsel. Court affirm.

Citibank (South Dakota), N.A. appeals from an order denying its petition to compel arbitration of a putative statewide class action lawsuit filed by Dale Firchow, a Citibank credit card member. The lawsuit alleges Citibank and Ford Motor Company (Ford) prematurely and improperly terminated a credit card rebate program in violation of the Consumer Legal Remedies Act (CLRA) (Civ. Code, S 1750 et. seq.) and California's false advertising and unfair competition laws (Bus. & Prof. Code, SS 17500, 17200). Citibank unsuccessfully sought arbitration of the dispute in accordance with a provision in the applicable credit card agreement that subjects such disputes to individual binding arbitration and prohibits proceeding in arbitration on a class or representative basis.
On appeal Citibank contends the trial court erred in finding the class action waiver provision unconscionable under California law and denying the motion to compel arbitration. Citibank urges the trial court should have applied South Dakota law in accordance with the choice of law provision in the credit card agreement and contends under South Dakota law the arbitration clause, including the class action waiver provision, is enforceable. Court affirm.

A modification decision.

The mother of minor, timely appealed from the order denying her Welfare and Institutions Code section 388 petition seeking the termination of the maternal grandparents' guardianship over minor and placement of her daughter with her. Court affirm.

The mother of dependent child minor, appeals two orders made by the trial court at a six-month dependency review hearing. (Welf. & Inst. Code, S 366.21, subd. (e).) She claims that it was an abuse of discretion for the trial court to order a psychological evaluation, that any psychological evaluation should have been ordered to be performed in Montana, and that there was insufficient evidence to support the protective order the court issued. Court affirm.

The mother of minor, timely appealed from a visitation order. Mother contends the court improperly delegated complete discretion to Terry's therapist to determine whether or not she could see minor. Court disagree and affirm.

On July 6, 2004, defendant was charged by felony complaint with one count of grand theft auto, one count of unlawfully driving or taking a vehicle, and one count of misdemeanor hit and run driving (Pen. Code, S 487, subd. (d); Veh. Code, SS 10851, subd. (a), 20002, subd. (a)). On July 13, 2004, represented by counsel, Ortiz pleaded guilty to count 1, grand theft auto. During the colloquy at the plea hearing the court advised Ortiz, "[I]f you are not a citizen of the United States, your conviction in [sic] this offense today will result in your deportation, exclusion from admission to the United States, denial of naturalization." Following his guilty plea, the court suspended imposition of sentence and placed Oritz on three years of formal probation. Defendant did not appeal.
Court have examined the entire record, including the record of defendant's plea hearing and are satisfied defendant's attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277 - 284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (Nov. 27, 2006, S133114) ___ Cal.4th ___; People v. Wende (1979) 25 Cal.3d 436, 441.). Court affirm.

Defendants went on a five-hour crime spree. Defendant, who was armed with a gun, robbed a restaurant and two gas stations, each time fleeing to a waiting car driven by defendant Jones.
Juries convicted each defendant of three counts of robbery (Pen. Code, S 211; unspecified section references that follow are to the Penal Code) and one count of attempted robbery (SS 664/211), and found the charged enhancements to be true (SS 12022, subd. (a)(1); 12022.53, subd. (b)). The trial court sentenced defendant to a prison term of 20 years 8 months, and defendant Jones to a prison term of 5 years 8 months.
Both defendants appeal. Defendant contends that (1) statements were admitted in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]; (2) instructions on aiding and abetting were incomplete; (3) the court erred in failing to instruct on lesser included offenses; and (4) the abstract of judgment does not accurately reflect the ordered restitution and parole revocation fines. Only this last contention has merit. Court therefore order a correction to the abstract of judgment but otherwise affirm the judgment as to defendant Jones.
Court reach a different conclusion as to defendant. Defendant presents several claims of error but one is dispositive: the verdicts were returned in a manner that violated his constitutional right to a public trial. This structural error compels reversal of his convictions.

Defendant was convicted after a jury trial of robbery (Pen. Code, S 211) and resisting arrest (Pen. Code, S 148). The jury further found that defendant had personally used a firearm in the commission of the robbery. (Pen. Code, S 12022.53, subd. (b).) Sentenced to 13 years in state prison, defendant appeals. Defendant contends the prosecutor engaged in misconduct during his examination of a witness or, alternatively, that reversal is required because the witness's testimony should have been excluded as irrelevant and prejudicial. Court affirm.

Pursuant to a plea agreement, defendant entered an open plea of guilty to first degree burglary (Pen. Code, S 459), and misdemeanor resisting arrest (Pen. Code, S 148, subd. (a)(1)); the court dismissed a charge of receiving stolen property (Pen. Code, S 496, subd. (a)), and a charge pending in another case of possession of a controlled substance for sale (Health & Saf. Code, S 11378) with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). Defendant was sentenced on the burglary count to the upper term of six years in prison. Defendant contends that the judgment must be reversed because the court failed to state reasons for imposing the aggravated term. Court agree and remand for resentencing.

Defendant appeals from the judgment following his conviction for second degree murder. Court affirm.