CA Unpub Decisions

Plaintiff Kojoklyan appeals from a judgment entered in favor of defendants Veronica Lee (Lee) and FHT, Inc. (FHT) after the trial court sustained defendants’ demurrer without leave to amend to all causes of action alleged in plaintiff ’s complaint. He further complains that the court erred in failing to award him monetary discovery sanctions. We conclude that plaintiff stated a cause of action in negligence for his physical injury and personal property damages, but that his other causes of action fail as a matter of law, and that the court did not err in denying plaintiff ’s sanctions request. We, therefore, affirm in part and reverse in part.

On December 21, 2016, a jury convicted Bobby Earl Trotter of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)), forcible oral copulation (§ 288, subd. (c)(2)(A)), two counts of attempted sodomy by use of force (§§ 664 & 286, subd. (c)(2)(A)), and second degree robbery (§ 211). The jury found on all counts that Trotter had personally used a deadly and dangerous weapon—a screwdriver—to commit the crimes. The trial court subsequently determined that Trotter had suffered a prior conviction of a serious felony and several other prior convictions. Based on the jury’s verdict and the trial court’s determination regarding Trotter’s prior convictions, the trial court sentenced Trotter to two life sentences plus four years for kidnapping to commit robbery, 16 years consecutive to the life sentences on the forcible oral copulation count, 16 years on each of the attempted sodomy counts, one to run concurrently and one stayed, and 10 years for robbery to run concurre

In this dissolution action, the trial court ruled that (1) the husband during the marriage validly granted the wife an apartment complex in Texas as her sole and separate property, and (2) the husband was not entitled to reimbursement for the merchant account balances and undistributed earnings of one of their businesses that wife obtained as part of a pretrial settlement. Husband challenges both rulings in this appeal. We conclude there was no error, and affirm.

Orion Milum appeals his conviction and sentence on three counts of molesting his niece in 2004, when she was five years old. He contends his trial was tainted by the introduction of testimony that he molested his half sister in the early 1990s, an unadjudicated sexual offense that occurred before he turned 14. He correctly argues minors under 14 are presumed incapable of committing criminal acts, and clear Supreme Court precedent holds it is improper to allow evidence of a minor’s unadjudicated prior sexual offenses without evidence showing the minor appreciated the wrongfulness of the act. (People v. Cottone (2013) 57 Cal.4th 269, 280 (Cottone).) Milum says his conviction must be overturned because there was no such evidence and because his trial counsel was deficient in failing to object to the evidence on that basis.

Appellants R.M. (mother) and C.M. (father) appeal from the juvenile court’s orders terminating parental rights and freeing the three minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) They contend the El Dorado County Health and Human Services Agency (Agency) failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) by failing to notify the Blackfeet Tribe of the dependency proceedings and failing to include accessible and required family heritage information on the notices it sent to the Cherokee and Apache tribes. The Agency filed a letter in response stating it did not oppose conditional reversal. We agree that conditional reversal for ICWA compliance is required.

Petitioner Hector Avila participated in planning a robbery during which his accomplice killed Ernesto Flores. In 1998, a jury found Avila guilty of special circumstance felony murder, and the trial court sentenced him to life without the possibility of parole (LWOP). Thereafter, our California Supreme Court clarified under what circumstances an LWOP sentence for an aider and abettor of felony murder is constitutionally permissible. Banks set forth factors to consider when determining whether a person has acted with reckless indifference to human life and as a major participant, under the special circumstance statute, Penal Code section 190.2, subdivision (d). Relying on Banks, Avila petitioned this court for a writ of habeas corpus, but we summarily denied the petition. Our California Supreme Court then granted Avila’s petition for review and directed us to issue an order to show cause why Avila is not entitled to relief. We now conclude that Avila is entitled to relief.

Defendant and appellant Continental Heritage Insurance Co. (Continental), the surety on a bail bond, appeals an order denying its motion to vacate forfeiture and exonerate bail, as well as the judgment that was entered on the forfeited bond.
Continental contends the trial court lost jurisdiction over the bond by failing to declare a forfeiture immediately upon criminal defendant Ahmed Soliman’s (Soliman) failure to appear in court on September 3, 2015 for the preliminary hearing. The essential issue presented is whether the trial court acted within its discretion in refraining from forfeiting bail promptly upon Soliman’s failure to appear at that hearing.
The record reflects that Soliman was admitted to this country “on some sort of visa that allowed him to get his pharmacy license. During the pendency of this situation, the visa expired. He was unable to get an extension.

Petitioner Hector Avila participated in planning a robbery during which his accomplice killed Ernesto Flores. In 1998, a jury found Avila guilty of special circumstance felony murder, and the trial court sentenced him to life without the possibility of parole (LWOP). Banks set forth factors to consider when determining whether a person has acted with reckless indifference to human life and as a major participant, under the special circumstance statute, Penal Code section 190.2, subdivision (d). Relying on Banks, Avila petitioned this court for a writ of habeas corpus, but we summarily denied the petition. Our California Supreme Court then granted Avila’s petition for review and directed us to issue an order to show cause why Avila is not entitled to relief. We now conclude that Avila is entitled to relief.

Defendant and appellant Continental Heritage Insurance Co. (Continental), the surety on a bail bond, appeals an order denying its motion to vacate forfeiture and exonerate bail, as well as the judgment that was entered on the forfeited bond.
Continental contends the trial court lost jurisdiction over the bond by failing to declare a forfeiture immediately upon criminal defendant Ahmed Soliman’s (Soliman) failure to appear in court on September 3, 2015 for the preliminary hearing. The essential issue presented is whether the trial court acted within its discretion in refraining from forfeiting bail promptly upon Soliman’s failure to appear at that hearing.

Plaintiff and appellant Henry Bagumyan (Bagumyan) appeals a judgment in favor of defendant and respondent Irene Dorothy Brandies (Brandies) following a defense verdict.
Bagumyan contends the trial court erred in denying his Batson/Wheeler motions regarding defense counsel’s peremptory challenges which eliminated two prospective jurors of Armenian descent, and abused its discretion in certain evidentiary rulings with respect to the parties’ respective experts.
As explained below, we perceive no error and affirm the judgment.

After his mental competence was restored, defendant Gregory Dabney pled no contest to second-degree robbery and admitted several prior convictions. The trial court sentenced him to 18 years in prison and awarded him 1,760 days of custody credit. On appeal, defendant contends the court erred by refusing to hold another mental competency hearing before accepting his plea, and he is entitled to two additional days of presentence custody credit. We conclude defendant did not establish a substantial change of circumstances casting doubt on the validity of the previous finding that his competence had been restored. We conclude, however, he is entitled to 1,762 days of custody credit and modify the judgment accordingly. As modified, we affirm the judgment.

Christine A. Keller-Batista (Mother) and Austin J. Dias (Father) share joint legal custody of two minor children from their previous marriage. This appeal concerns Father’s request to modify a visitation schedule under which his time with the children was limited to every other weekend and two midweek overnight visits per month. Mother claims the trial court abused its discretion by granting Father equal visitation rights and ordering the parties to follow an alternating weekly physical custody plan. We affirm the challenged order.

By this petition for extraordinary relief, the mother of Wesley G., seeks relief from orders denying reunification services and setting a hearing to select a permanent plan for the child. She contends the evidence does not support the court’s denial of services and the court improperly delegated discretion over ongoing visitation. We deny the petition.

Plaintiff Timothy DeWitt, an attorney acting in propria persona, sued several defendants, including defendant HSBC Bank USA, N.A. (Bank) for violating the California Anti-Spam Act. During the course of the suit, the trial court granted a motion to compel further responses and granted monetary discovery sanctions of $5,510 in favor of the Bank. DeWitt appeals from the order granting the motion to compel and from the discovery sanctions order. Only the latter order is appealable. (Code Civ. Proc., § 904.1, subd. (a)(12) [authorizing appeal of monetary sanctions exceeding $5,000]; Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1432 [“There is no statutory provision for appeal from an order compelling compliance with a discovery order.”].)