CA Unpub Decisions

Defendant doing business as Insurance Agency, sued Missouri residents and Business Insurance Management (BIM) for indemnification in a workers’ compensation insurance dispute. The trial court dismissed the action against Samuelson and BIM for lack of personal jurisdiction. Court affirmed.

Defendant entered a negotiated plea of no contest to second degree burglary. Defendant appeals requesting the court to independently review the record. Court found no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

An electrical contractor, sued petitioner, a general building contractor based in Nevada, for breach of contract, common counts, violation of Civil Code section 3260, and violation of Business and Professions Code section 7108.5. Also included in the complaint were causes of action against petitioners Carefree Natomas Limited Partnership, Carefree Natomas, LP, and CALGP Corporation on a stop notice and to foreclose on a mechanics lien. Respondent’s claims involve materials, labor and equipment supplied for construction of an apartment complex known as Carefree Natomas in Sacramento.
Petitioners unsuccessfully moved to dismiss respondent’s complaint on the ground of inconvenient forum. They argued the subcontract agreement between Emard and Templeton required Emard to submit the dispute to mediation or arbitration in Las Vegas, Nevada, before filing suit. The court ruled that Code of Civil Procedure section 410.42 (section 410.42) rendered the out-of-state mediation provision unenforceable.
Petitioners filed a petition for writ of mandate asking this court to set aside the trial court order denying their motion to dismiss. Alternatively, they seek an order remanding the matter for determination whether the Federal Arbitration Act, 9 U.S.C. section 1 et seq. (FAA), preempts section 410.42. Because court conclude the trial court was correct in ruling section 410.42 controls, and defendant was entitled to file suit under the terms of the subcontract agreement with Templeton, court need not reach the federal preemption issue.

Defendant was convicted of eight counts of committing lewd acts upon a child under the age of 14. Defendant appeals, arguing ineffective assistance of counsel, insufficient evidence to support two of the counts and sentencing error.
Appellant argues the imposition of consecutive terms in this case constitutes cruel or unusual punishment. The matter has been remanded for resentencing.
The consecutive sentences on counts 1, 5 and 8 are reversed and the matter is remanded to allow the trial court to consider whether the sentences on counts 1, 5 and 8 to be served consecutively or concurrently. In all other respects the judgment is affirmed.

A jury convicted defendant of one count each of assault with a semiautomatic firearm, shooting at an inhabited structure, discharging a firearm at a person from a motor vehicle, assault on a peace officer with a semiautomatic firearm and reckless driving while evading an officer. Defendant asserted on appeal (1) the section 245, subdivision (b) conviction must be reversed as a necessarily lesser included offense within the section 12034, subdivision (c) offense, and (2) the trial court abused its discretion by denying his request for probation. The conviction on count 2 for violation of section 245, subdivision (b) is reversed. In all other respects, the judgment is affirmed.

After a joint trial, the jury convicted defendant of unlawfully driving a vehicle, receiving stolen property, evading a peace officer with reckless driving, and resisting a peace officer in the discharge of his duties. The jury found codefendant Arce guilty of receiving stolen property and possessing a controlled substance, methamphetamine. Defendant appeals, contending the trial court prejudicially erred in admitting Arce's pretrial hearsay statements over his objections at trial, there was prejudicial Griffin error when Arce's counsel commented on his failure to testify at trial, he was denied the effective assistance of counsel when his own counsel failed to object to such Griffin error, and the victim restitution order must be modified to exclude lost wages incurred by the victim due to attending court proceedings.
Court found that the trial court erred in admitting Arce's pretrial statements without a limiting instruction, that such error is harmless as to count 1, but prejudicial to count 3 in light of the Griffin error, which court find by itself harmless. Court found no merit in Gardner's other assertions. Court therefore concluded count 3 must be reversed and defendant's remaining convictions affirmed. Accordingly, court remanded for resentencing.

Sharp Grossmont Hospital (Grossmont) appeals from a judgment of dismissal after the trial court granted respondent's special motion to strike its complaint under the anti-SLAPP statute and awarded respondent his attorney fees and costs. Respondent moves to dismiss the appeal as untimely.
Court concluded that to the extent Grossmont attempts to challenge the order granting the anti-SLAPP motion, its notice of appeal was untimely and court lack jurisdiction to entertain that challenge. Court also concluded that Grossmont's timely appeal from the judgment setting the amount of attorney fees does not confer jurisdiction on this court to reconsider the trial court's earlier ruling on the anti-SLAPP motion. Accordingly, court affirmed the judgment.

Appellant appeals from an order of the juvenile court sustaining a petition filed alleging the offenses of possession of a firearm by a minor and resisting a police officer, declaring him to be a ward of the juvenile court, and ordering him into the short-term camp community placement program. Appellant requested the court independently review the record. Judgment affirmed.

Defendant appeals from the entered after he plead guilty to failing to register as a sex offender and admitted suffering a felony conviction within the meaning of the Three Strikes law. Defendant requested the court to independently review the record. The judgment is affirmed.

Defendant was placed on probation after pleading no contest to battery with serious bodily injury. Defendant appeals requesting the court independently review the record. Court found no arguable error that would result in a disposition more favorable to defendant. The judgment is affirmed.

Federal authorities at the San Ysidro Port of Entry (port) discovered 99.48 pounds of marijuana hidden in a car in which defendant was riding as a passenger. The People filed a petition in which they alleged that defendant had unlawfully transported into the state more than 28.5 grams of marijuana, and that he had unlawfully possessed marijuana for sale. The juvenile court held an adjudication hearing, sustained the petition, and found both allegations to be true. On appeal, defendant contends that the trial court committed reversible error by admitting in evidence various translated statements that he purportedly made to a police officer during an interview conducted after his detention at the port. Defendant also claims there is insufficient evidence that he knew there was marijuana hidden in the car.
Court concluded that the trial court committed prejudicial error in admitting the translated out-of-court statements. However, court concluded that there is sufficient evidence that defendant knew there was marijuana in car. Accordingly, court reversed the judgment and remanded for a new adjudication hearing.

A jury convicted defendant of receiving stolen property; and being an accessory after the fact, but acquitted him of grand theft. The jury further found true Roberts's prior strike conviction allegation. The court sentenced defendant to prison for 32 months, consisting of the lower term of 16 months on count 2, doubled by his prior strike. Sentence on count 3 was stayed and restitution orders were made.
Defendant appeals, contending: (1) the jury's finding that he received stolen property should be reversed because it is not supported by substantial evidence; and (2) the jury's finding that he was an accessory after the fact should be reversed because a person cannot be convicted both of receiving stolen property and of being an accessory after the fact to the theft of that same property. On this record, these arguments have no merit and court affirmed the judgment.

In this juvenile dependency case, this court held the court abused its discretion by denying a motion by the dependent child's father, to continue a hearing so it could be determined whether his child, is eligible for membership in an Indian tribe. At the time of the hearing, there was specific evidence of child's eligibility, but the court denied the motion to continue and reinstated the judgment terminating the parental rights of children's mother. Court reversed and remanded for a hearing on child's current status in relation to the Indian Child Welfare Act (ICWA).

Plaintiff sued defendant for malicious prosecution based on his legal representation of Plaintiff's former patient, Gail Conway-Lenz, on whom Plaintiff had performed breast augmentation surgery. The trial court concluded defendant had probable cause to file and prosecute an action against Plaintiff for medical malpractice and to ultimately try that action on a theory of medical battery, and therefore malicious prosecution was not established. On appeal from the judgment entered in defendant’s favor, Plaintiff argues the trial court erred. Court affirmed the judgment.