CA Unpub Decisions

Zhong Lin Wei and Min Liang (the Weis) appeal from a judgment of nonsuit on their bad faith action against Stewart Title Guaranty Co. (Stewart Title). They contend both procedural and substantive errors warrant reversal of the nonsuit. We affirm the judgment.

This litigation is an aftermath of the fatal September 12, 2008 Chatsworth head-on collision between a Metrolink commuter train and a Union Pacific freight train. Plaintiffs are all insurers. They insured Metrolink, Connex Railroad LLC and Connex’s parent, Veolia Transportation, Inc. Insurers interpleaded their policy limits and then sued for reimbursement, unjust enrichment and a judicial determination that an express policy exclusion precluded coverage for the accident. Connex and Veolia (collectively, Insureds) cross-complained, alleging breach of contract, bad faith, coverage estoppel, and fraud.
Connex and Veolia moved separately for summary judgment on the first amended complaint, contending the express policy exclusion did not apply as a matter of law. The trial court
agreed and granted the motions. Insurers moved for summary judgment on the cross-complaint, contending it failed as a matter of law based on Insureds’ release of all claims against them. The tria

Defendants and appellants Kensington Caterers Inc. (Kensington) and Richard Mooney (Mooney) (collectively defendants) appeal the trial court’s postjudgment order denying their motion to set aside a default and a $150,585 default judgment obtained by plaintiff and respondent Fidel Consuelo Jimenez (Jimenez).
Defendants contend the trial court erred as a matter of law in failing to set aside the default judgment against them as void or, alternatively, abused its discretion in refusing to set aside the default judgment based on its inherent equitable authority. Defendants’ contentions essentially are based on two arguments: (1) the default judgment should be set aside based on extrinsic fraud because defendants never received proper service of the summons, complaint, notice of case management conference, and statement of damages; and, (2) the default judgment is void because it exceeds the damages specifically pleaded in the complaint, or, alternatively, because Jimenez failed to s

Plaintiff Isaac Nsejjere was unsuccessful in two actions against MannKind Corporation. In the first action, the trial court sustained without leave to amend MannKind’s demurrer to plaintiff’s first amended complaint (FAC), asserting contract and promissory estoppel claims. Plaintiff then filed a second action against MannKind and its principal, Alfred E. Mann, for promissory fraud. The trial court sustained without leave to amend defendants’ demurrer to that complaint as well.
Plaintiff appealed from the ensuing judgments, and we consolidated the appeals. Having independently reviewed both records (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439), we conclude as a matter of law the operative pleadings do not state facts sufficient to state a cause of action. We therefore affirm.

Defendant Donald Cooper, an attorney, retained plaintiff Dr. Viesturs Petersons, a retired neurosurgeon, to serve as a medical expert in a wrongful death lawsuit. Petersons subsequently sued Cooper, alleging Cooper breached the parties’ retainer agreement by failing to pay Petersons approximately $104,000 in fees. After a bench trial, the court found in favor of Petersons, and awarded him $75,150 on the claim. Cooper challenges the judgment on multiple grounds, all essentially disputing the sufficiency of the evidence to support the court’s findings. We conclude the findings are supported by substantial evidence, and affirm.

Plaintiffs, current and former students at various campuses within the California State University (CSU) system, filed a class action lawsuit against defendant the Board of Trustees of CSU (defendant or Board). Plaintiffs alleged defendant breached its contract with students and violated the covenant of good faith and fair dealing implied in that contract when, having required plaintiffs to pay a mandatory State University Fee (fee) or non-resident tuition for the Fall 2009 academic term at specific lower amounts, it then increased the amount twice—a 10 percent increase in May 2009 and an additional 20 percent increase in July 2009. The trial court denied plaintiffs’ motion for summary adjudication on the breach of contract claim and granted summary adjudication for CSU on that cause of action, finding no breach of the implied contracts between CSU and its students.

Following a jury trial, defendant Waking Adrian Bailey was convicted of 11 counts of sexual offenses against four minor victims. As to S. Doe, defendant was found guilty of two counts of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) (counts 1 & 2) and three counts of committing a lewd or lascivious act on a child under 14 years of age (§ 288, subd. (a)) (counts 3-5). As to F. Doe, defendant was found guilty of committing a lewd or lascivious act on a child under 14 years of age (§ 288, subd. (a)) (count 7). As to L. Doe, defendant was found guilty of rape of a victim incapable of giving consent (§ 261, subd. (a)(1)) (count 8). As to C. Doe, defendant was found guilty of four counts of committing a lewd or lascivious act on a child under 14 years of age (§ 288, subd. (a)) (counts 11-14). The jury found true the allegations with respect to counts 3, 4, 5, 7, and 11 to 14 that defendant had committed an enumerated offense against more

Linda Marshall appeals from the judgment on reserved issues following the dissolution of her marriage to Bryan S. Marshall. Linda challenges two specific aspects of the family court’s division of marital property. She contends the court erred declaring a 2006 capital gains tax liability to be a community debt, notwithstanding the fact she had obtained an “innocent spouse” determination from the Internal Revenue Service (IRS). Linda also contends the court erred in awarding Bryan the post-separation proceeds of a disability insurance policy as his separate property, despite the fact the policy had been purchased with community funds and was purportedly intended to serve as retirement income.

Appellant/defendant Elijah Saesee pleaded no contest to driving under the influence while having 0.08 percent or more of blood-alcohol content, proximately causing bodily injury to five victims, and admitted several special allegations, including three enhancements for the personal infliction of great bodily injury. He was sentenced to seven years in prison.
On appeal, his appellate counsel has filed a brief which summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant submitted a letter brief and claims the court improperly ordered restitution for someone who was not a “victim” of his crime. We affirm.

E.S. (Mother) is the mother of six children, who now range between the ages of four and 12 years old. The children were detained pursuant to Welfare and Institutions Code section 300, based on allegations of child abuse and torture, as well as the parents’ extensive substance abuse problems. Given the severe nature of the physical abuse, services were denied to Mother, and visitation was deemed detrimental to the children. The matter progressed to a section 366.26 hearing where a permanent plan was selected and implemented. Mother subsequently filed a section 388 petition seeking reinstatement of visitation. The juvenile court summarily denied the petition without a hearing. Mother challenges the juvenile court’s denial of her section 388 petition, arguing the court abused its discretion in denying her petition without an evidentiary hearing because, by the time of the petition, prima facie evidence showed her circumstances had changed and a change order was in the children

Defendant Carl Jonathan Quiroz forcibly took his girlfriend’s cellular phone, threatened to burn her house down and shoot her in the head, and slashed the tires on her vehicle. Defendant was convicted of making a criminal threat, first degree robbery, and misdemeanor vandalism. With enhancements for prior felony convictions, defendant was sentenced to 14 years four months in state prison. On appeal, defendant argues: (1) the trial court improperly allowed the prosecutor to impeach the victim’s testimony with her statement to a sheriff’s deputy that defendant had threatened her; (2) the court erred by preventing defendant from impeaching the victim with the conduct underlying her prior misdemeanor forgery conviction; and (3) the record does not support the robbery conviction because the evidence does not demonstrate defendant intended to permanently deprive the victim of her cellular phone.

Aaron Campbell, an associate of defendant’s cousin, Thurston Stewart, wanted to get some marijuana from Sylvestre Leyva, the victim, a Hispanic man he met at a hookah bar the previous night. The plan involved picking up defendant, Xavier Fort, because he had a gun, and others, and going to the victim’s house in a group to grab the marijuana. At Leyva’s house, Samuel Delatorre (who actually owned the marijuana but allowed Leyva to broker the deal), and Leyva came out to meet them and handed Campbell the bag of marijuana. Campbell pulled out a gun and told Leyva and Delatorre to go back into the house. By this time, Leyva’s friends came out of the house as Campbell and his group turned to leave in their cars with the marijuana. As Leyva and Delatorre turned to re-enter the house, defendant fired three gunshots into the group of Hispanics, one of which struck and killed Leyva.

Defendant Gabriel Gomez, Jr., pleaded guilty to unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a). Thereafter, Proposition 47 went into effect. Proposition 47 allows a defendant convicted of one of several theft-related felonies to petition to have that conviction treated as a misdemeanor, provided the value of the property involved did not exceed $950. Defendant filed a petition pursuant to Proposition 47, but the trial court denied it on the ground that Proposition 47 does not apply to a conviction for unlawfully driving or taking a vehicle.

Franco Caraccioli pleaded guilty to one count of false imprisonment by menace (Pen. Code, §§ 236, 237, subd. (a)); one count of battery of a current or former significant other (§ 243, subd. (e)(1)); two counts of making a criminal threat (§ 422); two counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); two counts of attempting to dissuade a witness from reporting a crime (§ 136.1, subd. (b)(1)); one count of battery (§ 242); one count of false imprisonment (§ 236); one count of vandalism (§ 594, subds. (a),(b)(2)(A)); two counts of animal cruelty (§ 597, subd. (a)); one count of resisting an officer (§ 148, subd. (a)(1)); two counts of disobeying a court order (§ 166, subd. (a)(4)); and one count of violating a protective order (§ 166, subd. (a)(1)). As to one of the counts of assault by means of force likely to produce great bodily injury, he also admitted he inflicted great bodily injury on a nonaccomplice (§§ 1192.7, subd