CA Unpub Decisions

Randall Souden sued PacifiCare Life and Health Insurance Company for wrongful death, alleging his domestic partner, Robert Carey-Hogue, died after PacifiCare refused in bad faith to pay for life-saving medical treatment. PacifiCare petitioned to compel arbitration of the wrongful death claim based on an arbitration provision in Carey-Hogue’s health care services contract. The court denied the petition, concluding PacifiCare had waived its right to arbitrate by participating in litigation with Souden and Carey-Hogue prior to Carey-Hogue’s death. On appeal PacifiCare contends the court erred in considering the prior litigation in conducting its waiver analysis, an issue we need not decide. Because Souden had not agreed to arbitrate his individual wrongful death claim with PacifiCare and no statutory exception to mutual assent exists that would require Souden, as a nonsignatory to Carey-Hogue’s arbitration agreement, to arbitrate his wrongful death claim, we affirm the order den

The People charged Rennie Anthony Norelli in 2016 with two counts of second degree robbery. The People alleged Norelli had four prior convictions for felonies that were serious felonies within the meaning of Penal Code section 667, subdivision (a)(1), and serious or violent felonies within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12).
The jury convicted Norelli on both counts, and the trial court found the prior conviction allegations true. The trial court sentenced Norelli to 23 years in prison.

Defendant Jose Manuel Torres, Jr., was placed on supervised probation after pleading no contest to felony injury to a domestic partner (Pen. Code, § 273.5, subd. (a)) and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). Before entering the plea, the court confirmed with defendant that his attorney had explained the terms of his plea agreement and defendant indicated that his attorney had done so and that he understood the terms of the plea. Defendant’s plea included a broad waiver of his right to appeal.

Appellants Nancy Atwell, Elizabeth Craven, and Matthew Weinstein appeal the denial of their petition for writ of mandate against the City of Rohnert Park (City). In 2010 and 2015, the city council approved and reapproved an expansion for an existing Wal-Mart store, which would include a full grocery component. Appellants contend the city council’s second approval was inconsistent with its General Plan and land use policy LU-7. The trial court concluded appellants’ petition was barred by res judicata because a prior petition challenging the city council’s initial approval also asserted a claim contesting General Plan consistency. The trial court further held appellants’ petition was barred by the statute of limitations and substantial evidence supported the city council’s determination the expansion complied with the General Plan. We affirm the judgment.

Defendant was convicted by a jury of one count of making a criminal threat (Pen. Code, § 422, subd. (a)). The trial court imposed three years’ probation, subject to various terms and conditions, including that defendant submit to warrantless searches and seizures of his home, car, and person. On appeal, defendant challenges the warrantless search condition, contending it is unreasonable under Lent and unconstitutionally overbroad. Additionally, defendant contends, and the Attorney General agrees, the January 27, 2017, clerk’s minutes of the sentencing hearing and the order of probation should be modified to state defendant may not “possess or control any firearm.” We order the modification, and otherwise affirm.

Appellant Santa Clara County Department of Family and Children’s Services (the Department) appeals from the juvenile court’s order granting a Welfare and Institutions Code section 388 petition and terminating a legal guardianship over respondent Daniel M. shortly before Daniel’s 18th birthday. Since Daniel is now an adult, the Department’s challenge to the juvenile court’s order is moot. We dismiss the appeal.

Defendant Kareem Jabbar Howell, is currently serving a “Three Strikes” sentence. He filed a petition for resentencing under Penal Code section 1170.126. Although he was eligible to be resentenced, the trial court exercised its discretion to find that resentencing him “would pose an unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) and denied his petition. We affirm the trial court’s order.

Minors K.K. and C.K. appeal from the juvenile court’s decision to apply the sibling relationship exception to the termination of parental rights, and order legal guardianship as the minors’ permanent plan. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v); all further statutory references are to the Welfare and Institutions Code unless otherwise stated.)
K.K. and C.K. argue there is insufficient evidence to support the court’s finding adoption would substantially interfere with their relationship to their elder brother, Ch.K., and that the juvenile court abused its discretion when it declined to order adoption as the permanent plan. County counsel agrees with K.K. and C.K. On the other hand, Ch.K. and the minors’ parents seek to affirm the court’s findings and order.

The Orange County District Attorney (district attorney) appeals the dismissal of a criminal prosecution against defendant and respondent Vanessa Cerda. The district attorney contends the trial court misinterpreted a previously assigned judge’s order granting a suppression motion brought by Cerda and her codefendant, Armando Verdin. In the earlier proceeding, Cerda and Verdin claimed the police illegally detained them and therefore the court should suppress all the evidence obtained from their detentions, including evidence found when officers later searched their apartments. Although the court granted the suppression motion, the parties disagreed on the scope of the suppression order. When the case was reassigned, the trial court interpreted the suppression order to include evidence found in Cerda’s apartment. Without that evidence the prosecutor could not proceed and the court dismissed the case.

Defendant Johnny Liverne Ware contends on appeal that one of his two convictions must be reversed because it is a lesser included offense of the other. The People concede. We agree, and reverse the lesser included offense conviction.

On August 28, 2017, a petition under Welfare and Institutions Code section 602 alleged that defendant and appellant J.L. (minor) committed petty theft under Penal Code section 488 (count 1). On September 19, 2017, minor stipulated to, and received a grant of informal probation.
On November 28, 2017, an amended petition realleged that minor committed petty theft under Penal Code section 488 (count 1), and receiving stolen property under Penal Code section 496d, subdivision (a) (count 2). Minor admitted receiving stolen property as alleged in count 2. In exchange, the juvenile court dismissed count 1 and reduced count 2 to a misdemeanor. At the disposition hearing on January 5, 2018, the court found that minor was a ward of the court, and granted him probation in his mother’s custody.

In this action for dissolution of marriage filed by Kimberly Merritt (wife), the family court issued a temporary restraining order (TRO) against Christopher Merritt (husband) and, after hearing testimony, issued a domestic violence restraining order (DVRO). Husband and wife thereafter attended mandatory mediation of child custody and child visitation issues, after which the mediator recommended that wife have full custody of the three children and that husband have supervised visits once a month. Husband requested an evidentiary hearing on the mediator’s recommendations, and he served wife with a witness list.

Jane Doe alleged that Brandis Christian Dew, her uncle by marriage, touched her buttocks when she was in her bathroom and later touched her vaginal area under her clothing while she was in her bedroom. Dew admitted touching Jane's buttocks, but denied the other allegation. A jury convicted Dew of misdemeanor annoying or molesting a child (Pen. Code, § 647.6, subd. (a)) based on his act of touching Jane's buttocks, but found him not guilty of felony sexual battery (§ 243.4, subd. (a)) and the lesser included offenses of battery (§ 242) and misdemeanor sexual battery. The trial court sentenced him to summary probation for 36 months under certain conditions including 90 days in county jail. Dew appeals, contending: (1) insufficient evidence supported his conviction, (2) the court improperly instructed the jury, (3) the prosecutor committed misconduct, and (4) the trial court decided his new trial motion under an improper standard. We affirm.

Plaintiff and appellant Robert Dorfman sued defendant and respondent State Farm General Insurance Company (State Farm), alleging breach of his first party unit owner's insurance policy terms and bad faith policy handling. Dorfman's investment property, a third floor condominium unit (the property, unit 304), sustained water damage in the shower area when the shower drain seal in the condominium unit above (unit 404) dried up, leakage began and part of his drywall ceiling failed. State Farm afforded Dorfman only limited coverage under a collapse endorsement but denied coverage under an amended physical loss/water damage endorsement, based on its conclusions that a "continuous or repeated seepage or leakage" had occurred and caused an excluded loss. After a jury trial, judgment was entered for State Farm and Dorfman appeals.