CA Unpub Decisions

After a jury convicted appellant Richard Anthony Fuentez of numerous counts, the trial court sentenced him to a total of 49 years and four months in prison comprised of, among other things, a consecutive 16-month term for the firearm enhancement appended to one of the counts (Count 4, Pen. Code, § 12022.5, subds. (a) & (d)). The court also ordered pursuant to section 1202.4, that Fuentez pay $65,958.99 to the Arrowhead Regional Medical Center. Fuentez appealed the original sentence and in Fuentez I, this court ordered his sentence vacated. (People v. Fuentez (Feb. 9, 2016, D069062) [nonpub. opn.] [2016 Cal.App. Unpub. Lexis 1048] (Fuentez I).) We remanded the matter to the trial court with directions to stay the enhancement for use of a firearm appended to count 4 pursuant to section 1170.1, subdivision (f).

In 2015, a jury convicted Louis Perez, Dorothy Maraglino, and Jessica Lopez of first degree murder (Pen. Code § 187, subd. (a)), kidnapping (§ 207, subd. (a)), torture (§ 206), and attempted sexual battery by restraint (§§ 243.4, subd. (a) & 664) following the death of Brittany Killgore in April 2012. The jury also convicted Perez and Maraglino of a conspiracy to kidnap (§ 182, subd. (a)(1)), but acquitted Lopez of that charge. In addition, the jury made a true finding as to all defendants on the special circumstance allegation that the murder was committed during a kidnapping (§ 190.2, subd. (a)(17)(B)). The prosecution did not seek the death penalty, and all three defendants were sentenced to life imprisonment without parole (LWOP) for first degree special circumstance murder.

This appeal is from the juvenile court’s dispositional order committing now 19-year-old J.S. to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), for a maximum term of four years. Minor contends the juvenile court abused its discretion in committing him to DJJ. In addition, minor argues mandatory sex offender registration for a juvenile who is committed to the DJJ and adjudicated of violating Penal Code section 288, subdivision (b), violates (1) the prohibition on cruel and unusual punishment and (2) his equal protection and due process rights. Finally, minor contends he is entitled to further precommitment credits, and the People agree. Consequently, we remand the case to the juvenile court to reconsider and to recalculate minor’s credits, if necessary, but otherwise affirm the order.

Appellant Heng Sheng Inc. challenges the trial court’s order granting respondent Sergio Miralda’s motion to disqualify appellant’s trial counsel based on his conduct related to respondent’s Code of Civil Procedure section 998 offer and his other communications with respondent’s counsel. Because appellant’s counsel’s conduct did not harm respondent or present a substantial continuing injury to the judicial proceedings, we conclude that the trial court erred in disqualifying appellant’s counsel, and accordingly, we reverse.

R.G., mother of one-year-old Khalil P., appeals from the juvenile court’s jurisdictional and dispositional orders. (Welf. & Inst. Code, § 395.) We affirm.

Plaintiff and appellant Machavia, Inc. challenges the trial court’s grant of summary judgment in favor of defendants and respondents the County of Los Angeles (the County) and John R. Noguez, in his capacity as Los Angeles County Assessor (the assessor). Machavia sued the County for a refund of property taxes on two aircraft. The trial court granted summary judgment on the ground that Machavia had failed to exhaust its administrative remedies prior to filing suit. Machavia now contends that it was not required to exhaust administrative remedies because various exceptions applied. We affirm.

Appellant F.R. (mother) appeals the order terminating her parental rights over three of her children, sons Jo., Je., and Ja. Mother contends only that the court and the Los Angeles County Department of Children and Family Services (DCFS) failed to comply with the inquiry and notice obligations imposed by the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq., ICWA). We agree. DCFS did not make inquiry of mother’s father, despite being told that Indian heritage passed through him and that mother knew how to reach him. Additionally, the notices DCFS sent to potentially affiliated Indian tribes included at best incomplete and at worst inaccurate information about mother’s grandmother. We accordingly remand the matter to allow DCFS and the juvenile court to fully comply with ICWA and related California law and otherwise conditionally affirm the order.

Defendant David Nieuwendaal pled no contest to stalking victim S.B., violating a protective order S.B. obtained against him, and burning down the home S.B. rented. The court sentenced him to an agreed term of five years, four months, and ordered him to pay approximately $120,000 in restitution to S.B. and the owner of the rental home.
This appeal concerns only a $35,000 portion of the restitution award to S.B. for her lost income. Defendant contends S.B. should not have been awarded any restitution for lost income because she failed to prove that his conduct proximately caused her loss. In the alternative, he argues the trial court erroneously calculated S.B.’s lost income using gross rather than net numbers. We find no abuse of discretion and affirm the award.

A.D. (Mother) appeals from the dependency court’s jurisdictional and dispositional orders, as well as the order terminating jurisdiction and the exit order, entered at the six month review hearing, granting R.C., Sr. (Father) sole legal custody over their children, X.C., R.C., Jr., and P.C. Among the multiple issues raised on appeal, some of which are moot given the termination of the dependency jurisdiction, Mother contends that the dependency court should not have exercised jurisdiction because insufficient evidence supported the jurisdictional findings and disposition order, and because the tribal court of Mother’s Indian tribe in Arizona had exclusive jurisdiction over the matter. In addition, Mother argues that the court abused its discretion when it entered an exit order awarding Father sole legal custody of the children. As we explain, Mother’s contentions lack merit, and accordingly, we affirm.

Filippo Marchino, the Law Offices of Filippo Marchino, The X-Law Group (collectively, Marchino), and Eagan Avenatti, Avenatti & Associates, and Michael J. Avenatti (collectively, Avenatti) appeal from an amended judgment entered on their Code of Civil Procedure section 664.6 motion to enforce a settlement agreement.
Stoll, Nussbaum & Polakov (the Stoll firm) and Robert J. Stoll, Jr. (collectively, Stoll) moved to dismiss the appeal, contending neither Marchino nor Avenatti has appellate standing. Arguing the appeal was filed solely to delay trial in another action, Stoll also requested sanctions against Marchino and Avenatti. Because Marchino and Avenatti lack standing to appeal the amended judgment, we dismiss the appeal. Stoll’s application for leave to file the motion for sanctions is granted, but the motion for sanctions is denied.

This appeal arises out of a marital dissolution proceeding initiated in 2009 by Mischelynn Scarlatelli (Mischelynn) against Mark Scarlatelli (Mark). The appeal focuses on two properties in which Mark asserts a community property interest (the 339 Saddlehorn property and the 328 Saddlehorn property), both of which are owned by the Troy and Shirley Isom Trust (the Trust). In 2014, upon Mark’s motion, the trial court ordered the Trust joined as a third party claimant. At the 2015 trial, over Mark’s opposition, the court, by a judicial officer other than the one who granted the joinder motion, severed the third party civil matter without prejudice to each side raising its position in the civil department. Trial proceeded on all remaining issues, and as part of its judgment on reserved issues, the court found that the two properties were not part of the community estate and thus not subject to division in that proceeding.

Gary McKenzie (plaintiff) sued Petrolia Avenue Loan LLC (defendant lender) to quiet title in commercial property located in Compton as of a specific date, November 7, 2011. He based his ownership claim on a 2009 grant deed in his favor from nonparty Anthony Bustamante (hereafter, 2009 Bustamante grant deed). McKenzie recorded the Bustamante grant deed on October 20, 2011.
Defendant lender did not claim to be the record owner of the property; but on November 7, 2011, it recorded a deed of trust on the property to secure its $1.2 million loan to nonparty Petrolla Avenue LLC (PA). Nonparty PA recorded a grant deed in its favor for the property on same day. The grantor on PA’s grant deed was Bustamante, the individual who controlled PA and signed the earlier recorded grant deed to McKenzie.

Plaintiffs Jeremy J. Nickel and The Vineyard House, LLC (TVH) appeal from the trial court’s order denying their petition to correct and/or vacate an arbitration award entered in favor of defendants Far Niente Wine Estates, LLC, Far Niente Winery Inc., Nickel & Nickel Vineyards, LLC, FN Cellars, LLC, and FN Land, LLC (collectively, FNWE). Plaintiffs argue the award should be vacated and/or corrected because (1) they were denied the opportunity to respond to late evidence submitted by defendants, (2) the injunctive relief set forth in the arbitration award is fatally ambiguous, and (3) the arbitrator lacked jurisdiction to decide certain water rights issues. We affirm.

Scott W. appeals from the juvenile court’s orders terminating his status as de facto parent of 13-year-old S.W. and issuing a restraining order protecting S.W. from him. He contends the court erred in: (1) terminating his de facto parent status; and (2) issuing a restraining order against him. We reject the contentions and affirm the orders.