CA Unpub Decisions

A jury convicted of possession of methamphetamine for sale, utilizing a fortified house to sell methamphetamine, and destroying or concealing evidence. Appellant argues the trial court erred by failing to suppress statements he made to police without the benefit of Miranda warnings. Appellant also preserves for federal review his argument the trial court’s imposition of an upper term sentence violated his Sixth Amendment right to a jury trial and denied him due process under the Fourteenth Amendment. Finding no basis to disturb the judgment, court affirms.

Wells Fargo v. B.C.B.U. Appellants appeal from a postjudgment order that awarded attorney fees to Respondent in this breach of contract action. Appellants argues the fee motion was untimely, and Bangerter argues that he is not liable for fees under the fee clause in a guaranty he signed. Court agreed with Bangerter, and so reversed with directions to modify the order accordingly.

This case presents the following issue: Does a directors and officers liability and private company indemnification insurance policy issued by Respondent Company provide coverage for amounts paid by appellant to settle a lawsuit brought by a class of current and former employees for alleged violations of California wage and hour laws?
The trial court concluded appellant’s claim for the settlement payment fell within the Policy exclusion for certain statutory violations and granted summary judgment in respondent’s favor. Reviewing de novo, court conclude (1) respondent’s claim fell within the Policy’s definition of insurable loss, which includes “settlements” of employment claims; (2) there is a triable issue of fact whether the net settlement proceeds paid by respondent constitute a form of restitution that California law makes uninsurable; (3) the exclusion relied on by the trial court either does not exclude respondent’s claim or is ambiguous; and (4) since there is a possibility of coverage, the trial court erred in summarily adjudicating respondent’s claim for breach of the implied covenant of good faith and fair dealing in favor of Select. Court therefore reversed and remanded for further proceedings.

Appellant appeals from an order terminating his parental rights to his daughter, now 12 years old. Appellant argues the trial court abused its discretion by denying his fourth request for a continuance of the trial. Appellant failed to show good cause for his request to continue the trial, and all relevant factors supported denial of his request. Court therefore concluded that the trial court did not abuse its discretion in denying a continuance, and affirmed the order terminating appellant’s parental rights.

Defendant, as trustee of Family Trust, Dated March 22, 2001, appeals from a judgment declaring plaintiff is entitled to enforce the parties’ real property purchase contract and granting specific performance of that agreement. Court rejected defendant’s claim that the parties never entered into an enforceable contract and affirmed the judgment.

In a prior appeal, court affirmed the liability of appellant in connection with a landslide in a residential neighborhood. However, court also remanded a number of judgments in favor of certain homeowners for the trial court to make adjustments with respect to the amounts of their awards. After the trial court entered new judgments, appellant filed appeals from three of those judgments. The three sets of homeowners are jointly represented on appeal. Court affirmed the ruling denying appellant an offset with respect to monies paid by the Salyer Plaintiffs’ insurance carriers in settlement of claims against them for bad faith and breach of contract. The factual stipulations between the parties did not bar an assertion by the Salyer Plaintiffs that these monies were not paid as settlement monies from the developer as to which appellant was entitled to an offset.
Court reversed the ruling denying the recalculation of prejudgment interest following the redetermination of the amounts of the offsets on remand. Contrary to the assertion of the Salyer Plaintiffs, nothing in court's prior opinion precluded the recalculation of prejudgment interest on remand. Court also reverse the award of attorney fees with respect to the first appeal. The trial court erred in failing to first determine what fees were actually incurred with respect to the appeal, before evaluating whether the requested fees were reasonable. Code of Civil Procedure section 1036 does not permit an award of attorney fees on an inverse condemnation action unless the fees were actually incurred by the plaintiff. Finally, this court directed the trial court to redetermine postjudgment interest as appropriate in light of the other adjustments made pursuant to this opinion.

After an administrative hearing, the Department of Motor Vehicles (DMV) suspended appellant’s driver’s license for one year on the grounds that he had refused to submit to a blood test after he was arrested for driving under the influence. The trial court denied appellant’s petition for writ of mandate. On appeal, appellant, an Air Force pilot, argues that the DMV should not have suspended his license because he was required to refuse the blood test by an Air Force regulation that prohibited him from donating blood within 72 hours of flying. Court found no error and affirms.

Defendant was injured and his car was damaged in an automobile accident that was not his fault. At the time the accident occurred, he did not have liability insurance, but he purchased minimum insurance later that day. Under Proposition 213, an injured person is not entitled to damages for pain and suffering (noneconomic damages) if he is not insured at the time of the accident. This case concerns defendant’s claim for damages arising from the accident. Following his conviction of two counts of insurance fraud, defendant appeals, claiming the trial court erred in refusing to permit his expert witness to testify about insurance industry practices and in failing to instruct the jury on mistake of law. Court found no errors and affirms his conviction.

Defendant was convicted by plea of one count of second degree robbery with an enhancement for committing the offense for the benefit of a criminal street gang. The court suspended imposition of sentence and ordered five years formal probation, subject to various conditions. After defendant committed a series of probation violations, the court revoked his probation, sentenced him to 15 years in state prison, and awarded him 365 days of custody credits.
On appeal, defendant contends the court erred when it imposed a $3,000 restitution fine and a $3,000 parole revocation restitution fine. Court concluded that the juvenile court erred in imposing fines in these amounts and modified the judgment to reduce the amount of the fines. Defendant also asserts the trial court erred in calculating his custody credits and that he is entitled to additional credits for the period August 27, 2005, through October 21, 2005. Court conclude defendant is entitled to additional custody credits and modified the judgment accordingly.

California Highway Patrol (CHP) officer received a memorandum from a superior officer stating he had been observed participating in a Hell’s Angels sponsored event. The memorandum warned that the CHP might seek to impose discipline if he were to engage in similar activities in the future. Plaintiff claimed he was entitled to an administrative appeal and filed a petition for a writ of mandate in the trial court directing the CHP to afford him such an appeal to challenge the memorandum. The trial court granted the petition, finding that Plaintiff was entitled to an evidentiary hearing before a neutral finder of fact.
In this appeal, Appellants seek to overturn the trial court’s judgment, arguing that the memorandum did not constitute “punitive action” affording Plaintiff the right to seek an administrative appeal. Court agrees and, accordingly, reversed the judgment.

Appellant, who had been a mechanical subcontractor to respondents, on two school construction projects, one in Alameda County and the other in San Mateo County, sued them in Alameda County Superior Court for amounts allegedly owed him under the two subcontracts. Respondents cross-complained against him for sums incurred by them in completing work allegedly required of, but not completed by, appellant under the two subcontracts. After considerable pretrial skirmishing, the matter was tried before the court in a single day. Because it found appellant had not proved that he possessed the contractor’s license required by Business and Professions Code section 7031, at the close of the presentation of his evidence, the court granted respondents’ motion for a nonsuit and then ruled in favor of respondents on their cross-complaint. A judgment to that effect was later entered, which court hereby affirms.

Defendant appeals his conviction by jury verdict of four counts of attempted murder. The jury found true the allegations that he intentionally and personally discharged a firearm and proximately caused great bodily injury during commission of these offenses. Appellant contends that there is insufficient evidence to support three of the four attempted murder convictions because there is insufficient evidence of intent to kill, and that the court incorrectly instructed that the jury could infer an intent to kill from an intent to harm. Judgment Affirmed.

Defendant a Mexican citizen, pleaded no contest to assault with a deadly weapon. The trial court placed him on probation. About two years later, the trial court revoked probation after finding that defendant violated the probation conditions that he not reenter the United States illegally if deported, and that if he did reenter the country he must immediately report to the probation department. Defendant contends there is insufficient evidence to support the findings of a probation violation. Court agree and reverse because the findings are based on unreliable multiple hearsay.

Defendant appeals from a jury conviction for two counts of kidnapping to commit robbery; and one count each of robbery, carjacking, and kidnapping in the course of a carjacking. Defendant contends that the prosecutor committed prejudicial misconduct during closing argument; that the trial court committed reversible error by failing to sua sponte instruct the jury with a unanimity instruction; that his conviction for carjacking should be reversed because it is a lesser included offense to kidnapping in the course of a carjacking; and that the trial court imposed an unauthorized fine. Carjacking conviction is revered and the penalties are modified. The judgment is affirmed in all other respects.