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In 2016, Defendant pleaded no contest to driving or taking a vehicle without the owner’s consent (Veh. Code, 10851(a)) and admitted having a prior conviction for the same offense (Penal Code, 666.5(a)). The trial court sentenced Defendant to jail, suspended execution, and placed him on mandatory supervision. In 2018, Defendant again pleaded no contest to driving or taking a vehicle without the owner’s consent and misdemeanor resisting an officer and admitted that he had a prior conviction for the same offense and had served a prior term (Penal Code 667.5(b)). Defendant was found in violation of his mandatory supervision in the earlier case. At a combined sentencing hearing, the trial court revoked and terminated mandatory supervision in the earlier case. In the 2018 case, the court sentenced Defendant to two years in jail and three years on mandatory supervision and granted 72 days of custody credits. The court of appeal dismissed an appeal. Defendant’s claim that the trial court should have awarded 164 days of custody credits is not reviewable on appeal because it falls within the scope of his appellate waiver in his written plea agreement; he failed to obtain a certificate of probable cause to challenge the enforceability of the waiver. View "People v. Becerra" on Justia Law

Posted in: Criminal Law

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Jackson filed a pro se complaint against Kaiser under the California Fair Employment and Housing Act. After unsuccessfully attempting to serve the summons and complaint, Jackson sought counsel. Jackson never properly served Kaiser; Kaiser never appeared in the action. In April 2016, Jackson retained Horowitz to assist her “with regard to” the suit. Horowitz advised Jackson to dismiss her pending lawsuit without prejudice, believing that she could re-file by September 30, 2016. Although they apparently contemplated that Horowitz would prepare a new complaint, Jackson did not retain Horowitz as counsel of record. Jackson filed a Request for Dismissal prepared by Horowitz. On September 9, 2016, Horowitz informed Jackson that his advice had been based on his misunderstanding of the statute of limitations, which had expired on December 29, 2015, the date Jackson had filed her action. Jackson’s claims are now time-barred. Jackson retained Horowitz on a limited scope basis to represent her on an application seeking relief from the dismissal under Code of Civil Procedure 473(b). The court denied that application, stating that Horowitz’s erroneous advice could not serve as the basis for relief because he did not represent Jackson at the time and did not make an appearance in the case until October 2016, and section 473's mandatory relief provision did not apply to voluntary dismissal. The court of appeal affirmed. Although the order was appealable, section 473(b) mandatory relief is unavailable for this type of voluntary dismissal. View "Jackson v. Kaiser Foundation Hospitals" on Justia Law

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The city approved the agreement with Pacific Gas and Electric Company (PG&E), authorizing the removal of up to 272 trees within its local natural gas pipeline rights-of-way. The staff report explains that this is a Major Tree Removal Project, requiring a tree removal permit and mitigation for the removed trees. PG&E was willing to provide requested information and mitigation but claimed to be exempt from obtaining any discretionary permits. “To ensure that the [community pipeline safety initiative] can move forward and to protect the public safety, PG&E and City staff have agreed to process the ... project under [Code] section 6-1705(b)(S). This section allows the city to allow removal of a protected tree ‘to protect the health, safety and general welfare of the community.’“ Opponents sued, alleging violation of the California Environmental Quality Act (CEQA) (Pub. Resources Code 21000), the planning and zoning law, the general plan, and the tree ordinance, and the due process rights of the petitioners by failing to provide sufficient notice of the hearing. PG&E argued that the suit was barred by Government Code 65009(c)(1)(E), which requires an action challenging a decision regarding a zoning permit to be filed and served within 90 days of the decision. The original petition was timely filed but not served until after the deadline. The trial court dismissed without leave to amend. The court of appeal affirmed as to the ordinance claims but reversed with respect to CEQA. View "Save Lafayette Trees v. City of Lafayette" on Justia Law

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An order made after judgment affecting a defendant’s substantial rights is appealable. However, once a judgment is rendered, except for limited statutory exceptions, the sentencing court is without jurisdiction to vacate or modify the sentence, except pursuant to the provisions of section 1170 (d). Defendant’s motion for resentencing was not based on the trial court’s limited authority to resentence under section 1170(d). Instead, defendant argued he was entitled to resentencing under the recently enacted Senate Bill No. 620. Having concluded defendant has appealed from a nonappealable order, the Court of Appeal dismissed his appeal. View "California v. Fuimaono" on Justia Law

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In a prior appeal, the Court of Appeal affirmed a judgment denying A.K. Anderson’s petition for writ of mandate challenging the suspension of his driver’s license by the Department of Motor Vehicles (DMV). In that opinion, the Court concluded the record contained substantial evidence that Anderson had been diagnosed by a neurologist with a seizure disorder, and that he had voluntarily discontinued taking anti-seizure medication. After the first decision became final, Anderson submitted to the DMV a report prepared by a family practice physician that purported to demonstrate Anderson suffered from no medical ailments whatsoever, and that he required no medications. A traffic safety officer concluded the report did not demonstrate Anderson no longer suffered from a seizure disorder, and the officer ordered that Anderson’s license remain suspended. Anderson once again unsuccessfully petitioned the superior court for a writ of mandate challenging his original license suspension and the order refusing to lift the suspension. On appeal, Anderson again challenged the original suspension of his driver’s license, arguing the DMV could not refuse to reinstate his driver’s license under Vehicle Code section 12806 (c) because there was no evidence he suffered a seizure or a lapse of consciousness within the last three years. Because the Court of Appeal concluded the record contained substantial evidence that Anderson suffered from “a disorder characterized by lapses of consciousness” as in the plain language of the statute, the Court affirmed the judgment. View "Anderson v. Shiomoto" on Justia Law

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In August 2017, San Diego County Superior Court Judge Joel Wohlfeil was assigned as the independent calendar judge to preside over a case brought by Overland Direct, Inc., and CTPC, LLC (collectively Overland) alleging defendants fraudulently induced Overland to assign security interests in various properties to certain defendants. In 2018, Overland moved to transfer and consolidate its other cases involving similar fraud allegations, including ones from the San Bernardino and Los Angeles Counties' Superior Courts. Some defendants in the San Bernardino and Los Angeles cases were not already part of the San Diego County action; over written opposition by these defendants, Judge Wohlfeil granted the transfer motion and ordered the San Bernardino and Los Angeles cases transferred to San Diego County Superior Court and consolidated with Overland's existing San Diego case. Three of the defendants in the San Bernardino action ("Sunrise defendants") then brought a Civil Code section 170.6 challenge against Judge Wohlfeil. The court denied the challenge as untimely because the motion was filed more than 15 days after the Sunrise defendants appeared in the action by filing their opposition to Overland's section 403 transfer/consolidation motion. The Sunrise defendants filed a writ petition challenging the denial of their section 170.6 motion. After staying the San Diego County Superior Court proceedings, the Court of Appeal issued an order to show cause because section 170.6 rulings were not appealable and there did not appear to be any published authority on the precise issue. The Court then granted the parties' request that it defer ruling on the writ petition pending the resolution of various bankruptcy issues. After the bankruptcy issues were resolved, the parties completed their briefing on the section 170.6 issues. Based on its evaluation the Court of Appeal concluded the court properly found the Sunrise defendants' section 170.6 challenge was indeed untimely, satisfied its conclusion best effectuated the legislative intent when viewing the specific words of the statute and the statutory purpose and objectives. View "Sunrise Financial, LLC v. Super. Ct." on Justia Law

Posted in: Civil Procedure

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In this divorce proceeding involving disputes over the characterization of community property assets, the Court of Appeal held that the trial court did not err by adopting husband's tracing, which was adequate and satisfied his burden of proving his separate property. The court also held that the trial court's findings that husband did not breach fiduciary duties when he used community property funds to establish an irrevocable life insurance trust for the benefit of the children were supported by substantial evidence. The court held that the trial court abused its discretion when it retrospectively modified 2014 pendente lite child and spousal support, because it based the modification on the parties' 2013 tax returns, rather than their 2014 tax returns, which were then available. Accordingly, the court reversed in part and remanded for recalculation of the awards and the spousal support award. View "Marriage of Ciprari" on Justia Law

Posted in: Family Law

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After Rostack obtained a summary judgment against defendant in a breach of contract action in an amount exceeding $50 million, the Court of Appeal reversed and awarded defendant her costs as prevailing party. Then defendant's memorandum of costs sought to recover costs related to her obtaining a surety bond, secured by a letter of credit, pending the appeal. The court affirmed the trial court's denial of Rostack's motion to tax those costs because defendant's bond-related expenses were both reasonable and necessary. Specifically, the court held that the judgment for costs was a final enforceable judgment, and that the bond and letter of credit premiums were reasonable and necessary. Accordingly, the court affirmed the trial court's entry of judgment against Rostack for the full amount of the disputed costs. View "Rostack Investments v. Sabella" on Justia Law

Posted in: Civil Procedure

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M.F., the son of Nicole W. and Stephen C., appealed orders at the 12-month review hearing under Welfare & Institutions Code section 366.21 (f) directing the San Diego County Health and Human Services Agency to extend the reunification period for an additional six-month period and setting the 18-month review hearing more than 23 months from the date he first entered foster care. M.F. challenged the juvenile court's finding that Agency did not provide reasonable services to his father. He also contended the juvenile court lacked authority to order continued services beyond the 18-month review date absent special circumstances not present here. The Court of Appeal concluded there was substantial evidence to support the juvenile court's finding that reasonable services were not provided or offered to the parent, that the juvenile court was authorized to extend reunification services up to the 24-month review date if the court determined reasonable services were not provided or offered to the parent, and the juvenile court was not required to consider the need for a continuance under section 352 when extending services. View "In re M.F." on Justia Law

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After months of investigation by police, with the assistance of the Federal Bureau of Investigation (FBI) and authorities in Kansas City, Missouri, Peter Johnson and Ian Patrick Guthrie were arrested and eventually charged with murder and assault with a semiautomatic firearm for the shooting death of Lamar Canady in 2014. The investigation into Canady's death revealed Johnson and Guthrie were participants in a conspiracy to kill Canady led by drug kingpin Omar Grant, who ordered a hit on Canady, executed by Johnson with help from Guthrie and other uncharged coconspirators. After the trial, which was conducted jointly but with separate juries, Johnson and Guthrie were both convicted of first degree murder. Johnson's jury also found true the allegation that Johnson personally discharged a firearm resulting in Canady's death. Johnson and Guthrie appeal their convictions on various grounds; the Court of Appeal concluded these claims lacked merit and affirmed both men's convictions. However, while the appeal was pending, the Court granted Johnson's motion to file a supplemental brief to explain the impact of the newly enacted Penal Code section 12022.53(h) on his sentence. The Attorney General conceded the change in law applied to Johnson, but argued the record showed the trial court would not have struck the firearm enhancement even if it had had discretion to do so. Although the Court of Appeal agreed there was some support in the record for the State's position, section 12022.53(h) was not effective when the trial court sentenced Johnson and the court lacked the discretion to strike the firearm enhancement. After the Court of Appeal issued its opinion, the California Supreme Court accepted certiorari review of Guthrie's case, and denied Johnson. The Court mandated the appellate court review its decision in light of the recently enacted Senate Bill 1393 (Stats. 2018, ch. 1013). As with the changes in 2018 to section 12022.53, the Attorney General conceded the law applied retroactively to Guthrie's case, but argued remand was futile because the record was clear that the trial court would not have struck the enhancement had it had discretion to do so. Although the trial court indicated it would not strike the serious prior felony enhancement even if it had the discretion to do so, Guthrie did not have the opportunity to address the question. Therefore, "out of an abundance of caution," the Court of Appeal remanded the matter for the limited purpose of allowing the trial court to consider whether to strike the firearm sentencing enhancement imposed on Johnson and to consider whether to strike the serious prior felony enhancement imposed on Guthrie. View "California v. Johnson" on Justia Law