CA Unpub Decisions

S.B. appeals an order denying his petition for reentry into juvenile court jurisdiction as a nonminor dependent. He contends the court abused its discretion in refusing to allow him to appear by telephone at the hearing on his petition. We shall affirm the order.

Following appellant’s admission to felony assault by means of force likely to cause great bodily injury, he was redeclared a ward of the court and was committed by the juvenile court to the chief probation officer for out-of-home placement. Appellant filed a timely appeal, asserting the matter must be remanded to the juvenile court to specify the maximum term and calculate predisposition custody credits. While this appeal was pending, however, a new petition was filed alleging appellant committed various felonies and misdemeanors. He admitted two felony charges. At the disposition hearing on his new petition, the juvenile court vacated appellant’s prior out-of-home placement, and referred him for new placement. Appellant has filed a separate notice of appeal from the latter case.

Proposition 36, enacted by the voters in 2000, generally prohibits the incarceration of nonviolent drug offenders and mandates that they instead initially receive substance abuse treatment. (See Prop. 36, as approved by voters, Gen. Elec. (Nov. 7, 2000), §§ 2(b), 3(a); Pen. Code, §§ 1210.1 [probation], 3063.1 [parole]. ) Some offenders are excluded from its protections, however, including “[a] parolee who refuses drug treatment as a condition of parole.” (§ 3063.1, subd. (b)(3).)

Appellant Gregory Cusack appeals from a judgment awarding respondent Rosalina Togneri contractual attorney fees under Civil Code section 1717 (hereinafter section 1717). Cusack argues the trial court erred in finding Togneri to be the prevailing party because the litigation was resolved by settlement and thus, there cannot be a prevailing party pursuant to section 1717, subdivision (b)(2); the contract at issue did not expressly give Togneri the right to obtain attorney fees; and Cusack, not Togneri, was the prevailing party because he forced Togneri to provide proof of her claims, which she wrongfully refused to provide prior to the litigation. Cusack further argues that equity should preclude the award of attorney fees to Togneri because it was her wrongful conduct that led to this unnecessary litigation. We reject these arguments and affirm.

Appellant Dae Yoon worked on a construction project for defendant Kwame E. Gregory, doing business as Contractor Services Company, and after the project was completed Yoon sought additional payment from Gregory for work beyond the scope of their original agreement. On April 30, 2014, the two met to discuss Yoon’s final payment. Yoon contends that Gregory grabbed and twisted his arm, causing him to drop certain documents he was holding in his hands and injuring him. Yoon sued Gregory for negligence and assault, and after a bench trial the trial court found that Yoon had not established that Gregory intended to injure him as required to bring his claims outside the exclusivity provision of the workers’ compensation law. Yoon argues that this finding was error. We affirm.

Defendant was convicted of special circumstance first degree murder committed when he was nearly 17 years old. He was sentenced to life without the possibility of parole (LWOP). Defendant was granted a resentencing hearing pursuant to Miller v. Alabama (2012) 567 U.S. 460 (Miller), and he was once again sentenced to LWOP. Defendant contends the trial court abused its discretion in reaffirming the LWOP sentence. After his notice of appeal was filed, however, the Governor signed into law Senate Bill No. 394 (2016–2017 Reg. Sess.) amending Penal Code section 3051 to provide all youth offenders serving LWOP sentences in California a parole suitability hearing after 25 years of incarceration. Because defendant will receive a parole suitability hearing after 25 years of incarceration, we find defendant’s challenge to his LWOP sentence is moot.

Defendant was convicted by a jury of unlawful possession of a firearm. He challenges three conditions imposed by the trial court in its order of formal probation. The first challenged condition forbids defendant from traveling outside of Humboldt County without authorization from his probation officer; the next two conditions require him to notify his probation officer prior to any changes in residence and employment. We find defendant’s challenges to these conditions lack merit, and affirm.

In May of 2015, Jane Doe, who was then almost 15 years old, began living with defendant Roger Roberts, whom she believed to be her father. Over the next several months, Roberts repeatedly had sex with Doe and provided her with methamphetamine. A jury found Roberts guilty of multiple counts of unlawful sexual intercourse and furnishing a controlled substance to a minor. Because Roberts had two previous convictions for lewd and lascivious acts with children under the age of 14, he was sentenced as a third-strike offender to an aggregate term of 362 years to life. On appeal, he contends that the trial court erred in admitting evidence of his prior convictions, that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment, and that the prosecution failed to properly plead that he was ineligible for second-strike sentencing because of his prior convictions. We affirm.

Diana Gardner (“Gardner”) defaulted on two unsecured promissory notes issued by Western Federal Credit Union (“Western”). Western sued Gardner for breach of the notes, and the trial court granted Western’s motion for summary judgment. Gardner, proceeding in propria persona, appeals, claiming she raised triable issues of material fact and the trial court should have granted her leave to amend to assert an unconscionability defense. We affirm.

Diana Gardner (“Gardner”) defaulted on two unsecured promissory notes issued by Western Federal Credit Union (“Western”). Western sued Gardner for breach of the notes, and the trial court granted Western’s motion for summary judgment. Gardner, proceeding in propria persona, appeals, claiming she raised triable issues of material fact and the trial court should have granted her leave to amend to assert an unconscionability defense. We affirm.

Plaintiff Britt Miller sued William Fleming for breach of fiduciary duty and breach of oral contract, alleging he had entered an oral partnership with Fleming to share profits on commercial real estate opportunities they agreed to pursue together. Following a bench trial, the trial court found in Miller’s favor on his breach of fiduciary duty claim and awarded him $3.7 million in compensatory damages. Fleming challenges the trial court’s decision, arguing no substantial evidence supported the finding Miller and Fleming had entered a partnership, and the damages award is both excessive and unsupported by the evidence. Fleming also argues the trial court erred in awarding expert fees based on an invalid Code of Civil Procedure section 998 (section 998) offer. We reverse the order awarding costs under section 998, but otherwise affirm.

Plaintiff purports to appeal from the order declaring him to be a vexatious litigant. That order is not directly appealable, but as an interlocutory order may be reviewed if a timely appeal is taken from a subsequent order or judgment of dismissal. “No judgment or order of dismissal was entered in the instant case. However, in the interest of justice and to prevent unnecessary delay, a reviewing court may deem the order appealed from as incorporating a judgment of dismissal and treat the notice as applying to that dismissal.” (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 988, fn. 2.) Given that both parties treat the appeal as properly before us and have briefed the merits, we will modify the order to make it an appealable order of dismissal.
Section 391 of the Code of Civil Procedure has various definitions of what constitutes a vexatious litigant.

Defendant Leon Norford III appeals his conviction following a jury trial of first degree murder, premeditated attempted murder, and criminal street gang conspiracy and true findings of several enhancements. The offenses arose out of a drive-by shooting which the evidence showed to have been committed by members of the Richmond “Deep C” gang against members of the rival “North Richmond” gang. Defendant challenges two rulings of the trial court and also asserts prosecutorial misconduct. We find no merit in these contentions and shall affirm the judgment.

After defendant pled no contest to charges of felony fleeing the scene of an accident and misdemeanor vehicular manslaughter, the trial court placed him on five years’ felony probation with one year in county jail. When he brought a motion to reduce his felony conviction to a misdemeanor under Penal Code section 17, subdivision (b) (hereafter section 17(b)), the court granted the motion based on defendant’s agreement to a condition providing that if defendant violated his probation, the court would reinstate the felony conviction. After defendant later admitted to a probation violation, the trial court reinstated the felony conviction. Defendant appeals, contending the trial court lacked jurisdiction to reimpose the felony sentence and the trial court’s sentence was the result of an unenforceable judicial plea bargain. We conclude the trial court’s action was unauthorized by law and remand for reconsideration of defendant’s motion to reduce his offense to a misdemeanor.