English v. McKenna

Filed 11/29/05 English v. McKenna CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JOYCE ENGLISH, Plaintiff and Appellant, v. ROBERT McKENNA et al., Defendants and Respondents.

B176725 (Los Angeles County Super. Ct. No. LC064233)

APPEAL from a judgment of the Superior Court of Los Angeles, Richard A. Adler, Judge. Affirmed.

Law Office of Kim D. Scovis, Kim D. Scovis and Jenny Scovis for Plaintiff and Appellant.

Schmid & Voiles and Suzanne De Rosa for Defendant and Respondent Robert McKenna.

Carroll, Kelly, Trotter, Franzen & McKenna, Michele A. Wilson; Greines, Martin, Stein & Richland, Robin Meadow and Jens B. Koepke for Defendant and Respondent Cedars-Sinai Medical Center.

Rushfeldt, Shelley & Drake, Kathryn S. M. Mosely, Robert C. Powers, and Jamie C. Ball for Defendant and Respondent Sherman Oaks Hospital and Health Center.

McCurdy & Leibl, John D. McCurdy and Christy Gargalis for Defendant and Respondent Stanley Cowen.

_______________________________

This is a wrongful death action in which the trial court granted the defendants’ separate motions for summary judgment. We affirm.

BACKGROUND

A.

In 2000, Lori English (then 43 years old with a history of gastroesophageal reflux disease, congestive heart disease, and related medical problems) had gastric surgery at Providence St. Joseph Medical Center. Her symptoms returned about a year later, and in November 2001 the same surgical procedure was performed by Robert McKenna, M.D., at Cedars-Sinai Medical Center. Three days after she was discharged from Cedars-Sinai, Lori was admitted to Sherman Oaks Hospital and Health Center where further surgery was performed by Stanley Cowen, M.D. Lori died in December 2001.

B.

In March 2003, Joyce English (Lori’s mother) sued Dr. McKenna, Cedars-Sinai, Sherman Oaks Hospital, and Dr. Cowen for wrongful death damages, alleging that all of the healthcare providers were negligent. The defendants answered, conducted discovery, then separately moved for summary judgment:

1. Dr. McKenna. His motion was filed on October 30, 2003 (with the hearing set for February 18, 2004), and was supported by admissible evidence (including an expert’s declaration) showing that his treatment of Lori was not negligent. On February 4, 2004, English filed her “opposition” to Dr. McKenna's motion but did not offer any evidence or argument. Instead, she asked for a two-month continuance so she could “receive responses to discovery which [had] already been propounded” and “set depositions in the near future.” Her lawyer said the delay in propounding discovery was “due to some personal emergencies, including the fact that [counsel’s] mother and partner was involved in a very serious car accident on September 2, 2003, which caused her to break over sixteen bones, required a long hospitalization and two surgeries.” In addition, she said, her “father [had] been hospitalized twice in the past six months with life-threatening illnesses.” On February 20, the trial court denied English’s request for a continuance (because there was no showing that controverting evidence might exist, because there was no meaningful description of the steps necessary to obtain such evidence, and because there was no explanation for the failure to submit an expert’s declaration to dispute Dr. McKenna’s evidence) and by minute order granted the motion for summary judgment. An order granting the motion (but not a judgment) was entered on March 16.

2. Dr. Cowen. His motion was filed on November 12, 2003, and was supported by admissible evidence (including an expert’s declaration) showing that his treatment of Lori was not negligent. On January 22, 2004, English filed the same “opposition” she filed with regard to Dr. McKenna’s motion. On February 5, the trial court denied English’s request for a continuance (because there was no showing that controverting evidence might exist, because there was no meaningful description of the steps necessary to obtain such evidence, and because there was no explanation for the failure to submit an expert’s declaration to dispute Dr. Cowen’s evidence) and by minute order granted the motion for summary judgment. An order granting the motion (but not a judgment) was entered on March 9.

3. Sherman Oaks Hospital. Its motion was filed on November 12, 2003 (with the hearing set for February 5, 2004), and was supported by admissible evidence (including experts’ declarations) establishing that its treatment of Lori was not negligent. On January 22, 2004, English filed the same “opposition” to Sherman Oaks’ motion that she filed to Dr. McKenna’s and Dr. Cowen’s motion. On February 5, the trial court denied English’s request for a continuance (because there was no showing that controverting evidence might exist, because there was no meaningful description of the steps necessary to obtain such evidence, and because there was no explanation for the failure to submit an expert’s declaration to dispute Sherman Oaks’ evidence) and by minute order granted the motion for summary judgment. An order granting the motion (but not a judgment) was entered on March 29.

4. Cedars-Sinai. Its motion was filed on January 30, 2004 (with the hearing set for April 12, and was supported by admissible evidence (including experts’ declarations) establishing that its treatment of Lori was not negligent. On March 29, English filed her opposition to Cedars-Sinai’s motion, this time “disputing” the evidence in a separate statement but once again failing to present admissible evidence supporting her claim of negligence. Instead, English submitted a “to whom it may concern” letter from David C. Brooks, M.D., a Massachusetts physician. The letter is not signed under penalty of perjury, and the doctor states only that he “reviewed a variety of records” (he does not identify them); the point of the letter is that the care provided by “the second hospital” was negligent. English also submitted excerpts from her own deposition testimony and unauthenticated copies of Lori’s medical records. In a supporting memorandum of points and authorities, English claimed that her own testimony showed that Lori was in pain, and that fact showed that Cedars-Sinai was negligent. On April 14, the trial court sustained Cedars-Sinai’s objections to English’s evidence and granted Cedars-Sinai’s motion for summary judgment.

C.

Before the ruling on Cedars-Sinai’s motion, English filed three notices of appeal from the three nonappealable orders granting the other defendants’ motions for summary judgment. In May, those appeals (all filed as case number B174246) were dismissed for nonpayment of fees and for a failure to designate a record.

On April 30, the trial court signed and filed a single final judgment against English and in favor of Dr. McKenna, Dr. Cowen, Sherman Oaks Hospital, and Cedars-Sinai. English filed a timely notice of appeal from that judgment.

DISCUSSION

English’s appeal fails for a number of reasons.

First, we disregard her statement of facts because it is unsupported by a single reference to the record, in blatant violation of rules 14(a)(1)(C) and 14(a)(2)(C), California Rules of Court, and because she refers to “facts” that cannot be found in the record. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.)

Second, her claim that her requests for continuances of the first three motions for summary judgment should have been granted is nothing more than an abstract discussion of general legal principles without any attempt to apply those principles to the facts of this case. The most that English has to say is that she told the court she had to conduct more discovery, and she simply ignores the fact that she failed to explain how that discovery would enable her to oppose the summary judgment motions or why she could not present her own expert’s declaration. In short, she has not shown that the trial court abused its discretion. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254-257; A & B Painting & Drywall, Inc. v. Superior Court (1994) 25 Cal.App.4th 349, 356-357; Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)

Third, with regard to Cedars-Sinai, English’s brief does not challenge anything about that summary judgment, which means she has waived whatever claim she thought she had when she filed her notice of appeal. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.)

For these reasons, the judgment must be affirmed.[1]

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

SPENCER, P.J.

MALLANO, J.

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[1] While this appeal plainly lacks merit, we do not believe it meets the standard of frivolous and therefore deny Cedars' motion for sanctions.

P. v. Senegar

Filed 11/29/05 P. v. Senegar CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. RODNEY W. SENEGAR, Defendant and Appellant.

B179870 (Los Angeles County Super. Ct. No. TA075952)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Gary E. Daigh, Judge. Affirmed.

Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

INTRODUCTION

Defendant and appellant Rodney W. Senegar appeals from the judgment entered following a jury trial that resulted in his conviction for identity theft. Senegar was sentenced to a prison term of three years.

Senegar contends: (1) the evidence was insufficient to prove identity; and (2) his counsel was ineffective. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. On February 22, 2004, Senegar applied to purchase or lease a 2004 Nissan Maxima from Superior Nissan in Carson. Senegar filled out a credit application and other documents using the name and identifying information of David Cheek, including Cheek’s social security number, telephone number, South Carolina address, and employment information. Senegar also presented a driver’s license bearing Cheek’s name but Senegar’s photograph. The real David Cheek lived in South Carolina and had no knowledge of, and had not given consent for, Senegar’s use of his information.

The Nissan dealership approved the deal and Senegar drove away in the new Nissan. While checking the credit application, Nissan Credit Corporation telephoned the real David Cheek, and discovered the identity theft. The vehicle was eventually returned to the dealership.

2. Procedure.

Trial was by jury. Senegar was convicted of identity theft (Pen. Code, § 530.5, subd. (a))^[1] and unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). The trial court granted a new trial on the Vehicle Code count, which was subsequently dismissed in furtherance of justice (§ 1385). It sentenced Senegar to a term of three years in prison.^[2] It also imposed a restitution fine, a parole revocation fine, and a court security assessment. Senegar appeals.

DISCUSSION

1. The evidence was sufficient to prove Senegar’s identity.

Senegar contends the evidence was insufficient to prove he was the individual who presented the false application and obtained the Nissan using Cheek’s name. This contention lacks merit.

When determining whether the evidence was sufficient to sustain a conviction, “our role on appeal is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “[T]he test of whether evidence is sufficient to support a conviction is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 667.) “We draw all reasonable inferences in support of the judgment. [Citations.]” (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that “ ‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Here, Liliana Radu, the finance manager at the Nissan dealership, identified Senegar as the person who purchased the car in a pretrial photographic lineup and at trial. Nissan sales manager Michael Do and salesperson Rami Tahhan both made tentative identifications of Senegar in pretrial photographic lineups.^[3]

This evidence was more than sufficient. It is well settled that the testimony of a single witness, if believed by the finder of fact, is sufficient to establish that fact. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Hampton (1999) 73 Cal.App.4th 710, 722; People v. Vega (1995) 33 Cal.App.4th 706, 711.) Radu’s testimony was sufficient to prove identity. Moreover, this evidence was bolstered by Do and Tahhan’s tentative pretrial identifications. The fact Do and Tahhan were unable to identify Senegar in court did not negate the evidentiary value of their out-of-court tentative identifications. (People v. Cuevas (1995) 12 Cal.4th 252, 265-268, 271-272.) Furthermore, Senegar’s photograph was on the driver’s license bearing Cheek’s name, strong evidence that Senegar, not some other identity thief, was the individual who applied for credit at the Nissan dealership.

Senegar argues that the evidence only proved he was the man depicted in the driver’s license, not the man who committed the identity theft. He theorizes that someone else could have been the real identity thief and the employees “based their identification of appellant on the fact that his picture in the driver’s license became ingrained in their memory” rather than on “an independent recollection of actually seeing the appellant at the dealership.”

Senegar’s argument, however, amounts to nothing more than a request that this court reweigh the evidence on appeal. That is not the function of an appellate court. (People v. Young, supra, 34 Cal.4th at p. 1181; People v. Maury (2003) 30 Cal.4th 342, 403; People v. Ceja (1993) 4 Cal.4th 1134, 1139.) The jury was not obliged to adopt Senegar’s argument that the employees assumed he was the person who applied for credit because his photo was on the driver’s license. Moreover, Senegar fails to explain why an identity thief would apply for credit using a driver’s license containing someone else’s photograph, or why, if that was the case, the employees did not notice the discrepancy. In sum, the evidence was sufficient to support the conviction.

2. Senegar’s ineffective assistance claim lacks merit.

a. Additional facts.

During cross-examination of Detective Jon Thorne, the following transpired:

“[Defense counsel]: Regarding the documents that you had and the signatures that were purported to be from a David Cheek, did you ever have the handwriting analyzed at all or handwriting analysis or comparison done?

“[Detective Thorne]: No. The suspect would not provide that to me.

“[Defense counsel]: Did you ever ask for a court order to get one?

“[Detective Thorne]: No, I did not.

During closing argument, defense counsel argued there was insufficient evidence that Senegar, rather than someone else, was the person who committed identity theft at the Nissan dealership. Counsel attempted to discredit the identifications, arguing, as Senegar does here, that the employees simply assumed Senegar was the thief because his photo was on the driver’s license. Counsel next argued that the police investigation was inadequate. She pointed out that no evidence tied Senegar to a Los Angeles address and telephone number that the thief had listed on the credit application; there was no evidence police investigated the name and address of a person listed as the thief’s cousin on the credit application; and the prosecutor had not shown, through a handwriting comparison, that the signature on the credit application was Senegar’s. In the latter regard, counsel argued that although the detective claimed Senegar refused to provide a handwriting sample, Senegar “doesn’t have to give a sample without a court order.” Defense counsel explained that the prosecutor could “come into court and ask for an order that there be a handwriting sample. None of that was ever done.”

b. Discussion.

Senegar argues counsel should have moved to strike the detective’s response that Senegar would not provide a writing sample. He urges that the detective’s statement was non-responsive; was “irrelevant because there was no foundation that appellant’s refusal was not the product of invoking the Fifth Amendment”; and was unduly prejudicial under Evidence Code section 352. We are unpersuaded.

“A meritorious claim of constitutionally ineffective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.’ ” (People v. Holt, supra, 15 Cal.4th at p. 703; People v. Carter (2003) 30 Cal.4th 1166, 1211; Strickland v. Washington (1984) 466 U.S. 668, 687.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin, supra, 18 Cal.4th at p. 333.) Tactical errors are generally not deemed reversible. (Ibid.) We presume that counsel’s conduct “ ‘falls within the wide range of reasonable professional assistance’ [citations], and we accord great deference to counsel’s tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the ‘ “perilous process” ’ of second-guessing counsel’s trial strategy. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 979; People v. Carter, supra, at p. 1211; People v. Jones (2003) 29 Cal.4th 1229, 1254.) A court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. (People v. Boyette (2002) 29 Cal.4th 381, 430-431.)

Compulsion of a handwriting exemplar is permissible under the Fifth Amendment. (Gilbert v. California (1967) 388 U.S. 263, 266-267; People v. Clark (1993) 5 Cal.4th 950, 1003.) A defendant’s refusal to provide an examplar in violation of a court order is admissible evidence of the defendant’s consciousness of guilt. (People v. Clark, supra, at p. 1003.)

Here, the record demonstrates that counsel had a tactical reason for asking Detective Thorne whether he had obtained a handwriting exemplar. The defense trial strategy – which Senegar concedes was basically sound – was mistaken identification and an inadequate investigation by police. Given the case against Senegar, that defense does not appear unreasonable.

Even assuming arguendo it was a mistake to bring up the handwriting exemplar issue or fail to move to strike the testimony, Senegar has not established prejudice. Had the fact Senegar declined to provide a writing sample been omitted, there is no reasonable probability he would have obtained a more favorable result. Contrary to Senegar’s argument, we do not see this as a “close case.” There was no dispute the identity fraud occurred. Senegar’s photograph was on the driver’s license provided by the thief at the Nissan dealership. One Nissan employee positively identified Senegar in a pretrial photographic lineup and at trial, and two others made tentative pretrial photographic identifications. Senegar presented no evidence contradicting the People’s case. Under these circumstances, Senegar has failed to establish prejudice, and his ineffective assistance claim fails.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P.J.

KITCHING, J.

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^[1] All further undesignated statutory references are to the Penal Code.

^[2] It also sentenced him to a consecutive eight month term in an unrelated case.

^[3] Tahhan and Do were unable to identify Senegar at trial.

P. v. Dunn

Filed 11/29/05 P. v. Dunn CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. PAUL R. DUNN, Defendant and Appellant.

B181039 (Los Angeles County Super. Ct. No. LA047069)

APPEAL from a judgment of the Superior Court of Los Angeles County. Martin L. Herscovitz, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellant Paul R. Dunn challenges his felon in possession of ammunition conviction on the ground the trial court erred by denying his motion to suppress the ammunition as the product of an unlawful search. We conclude the search was justified by appellant’s parole search condition, which was known to the police officers before they searched appellant.

BACKGROUND AND PROCEDURAL HISTORY

Los Angeles Police Department officers patrolling in the vicinity of two crimes committed by “the Reseda Slasher” thought appellant resembled a description and composite sketch of the suspect in those crimes. They stopped to speak to appellant and asked him if he was on probation or parole. Appellant admitted he was on parole. The officers searched appellant and found rifle ammunition in his pocket.

Appellant moved to suppress the ammunition. The magistrate denied his motion, which appellant renewed in the trial court. After the trial court similarly denied the motion, appellant pled nolo contendere to a violation of Penal Code section 12316, subdivision (b)(1) and admitted he had suffered one prior serious or violent felony conviction and served one prior prison term. The court sentenced him to a second strike term of two years eight months in prison.

DISCUSSION

Appellant contends the trial court erred by denying his motion to suppress the ammunition. He argues the search condition of his parole could not justify the search because it was suspicionless, arbitrary and capricious.

A warrantless search is presumed to be illegal. (People v. Frye (1998) 18 Cal.4th 894, 989.) The prosecution always has the burden of justifying the search by proving the search fell within a recognized exception to the warrant requirement. (People v. James (1977) 19 Cal.3d 99, 106.) A parolee subject to a search condition may be searched by a law enforcement officer who knows of the search condition even in the absence of any particularized suspicion, provided that the search is not arbitrary, capricious or harassing. (People v. Sanders (2003) 31 Cal.4th 318, 333; People v. Reyes (1998) 19 Cal.4th 743, 752-753.) A parole search could be constitutionally impermissible if performed too frequently, at an unreasonable hour, if unreasonably prolonged, or if other circumstances established arbitrary or oppressive conduct by the searching officer. (Id. at pp. 753-754.)

In ruling upon a motion to suppress, the trial court judges the credibility of the witnesses, resolves any conflicts in the testimony, weighs the evidence, and draws factual inferences. (People v. Alvarez (1996) 14 Cal.4th 155, 182.) We will uphold the court’s express and/or implied findings on such matters if they are supported by substantial evidence, but we independently review the application of the relevant law to the facts. (Ibid.)

At appellant’s preliminary hearing, Officer Matthew Vannatter testified that he and his partner were patrolling when they saw appellant walking near Saticoy and Vanalden at about 11:00 a.m. on September 23, 2004. Vannatter thought appellant strongly resembled the description and composite sketch of “the Reseda Slasher,” who had killed one person and attempted to kill another. The place where appellant was walking was near the scene of these crimes. The suspect in these crimes was described as a man between 17 and 28 years old; five feet, eight inches to five feet, ten inches tall; and “possibly a very, very light-skinned male Hispanic.” Appellant did not appear to be Hispanic, but Vannatter testified that the detective investigating the crimes had previously told him that the suspect might be a non-Hispanic white man.

Vannatter and his partner parked their car at the curb, and Vannatter’s partner walked toward appellant and asked if the officers could speak to him. The officers had not drawn their guns. Appellant stopped, turned around, and approached the officers. The officers asked appellant whether he was on parole or probation, and he admitted he was on parole. Vannatter verified appellant’s parole status via a computer check. Vannatter’s partner then searched appellant. He found ten live rifle cartridges in appellant’s trouser pocket, and the officers arrested appellant.

The magistrate viewed the composite sketch the officers had at the time of appellant’s arrest and expressly found that appellant resembled the sketch. She also found the officers lawfully and reasonably stopped appellant, then conducted a parole search.

Although it does not appear that appellant challenges the constitutionality of the stop, the undisputed evidence establishes that it was consensual in nature. The officers did not corner or tackle appellant, nor did they threaten him with words or weapons. They asked to speak to him, and he approached them. This was a completely consensual encounter, and did not rise to the level of a detention because a reasonable person in appellant’s position would have believed that he was free to leave. (People v. Boyer (1989) 48 Cal.3d 247, 267 disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824.) Therefore, reasonable suspicion that appellant may have been involved in criminal activity was not required.

The undisputed evidence established that the officers knew appellant was on parole before they searched him. At the trial court hearing on the renewed suppression motion, Vannatter testified that he knew all parolees were subject to a search condition. The officers could therefore lawfully search appellant without particularized suspicion, as long as the search was not arbitrary, capricious or harassing. The record does not support appellant’s claim that the search was arbitrary, capricious or harassing. As far as the record reveals, this was the only time Vannatter and his partner searched appellant, and evidence indicated how frequently appellant had been subjected to parole searches by any other law enforcement officers. The search was conducted at approximately 11:00 a.m. while appellant was walking around in public, and was thus not performed at an unreasonable hour. The record contains no basis for concluding that the search was unreasonably prolonged or conducted in any other fashion that might render it arbitrary, capricious or harassing.

Appellant argues that various precedents indicate the United States Supreme Court is unlikely to find a parole search constitutional in the absence of “some measurable level of suspicion.” However, this court is bound by People v. Sanders, supra, 31 Cal.4th 318, and People v. Reyes, supra, 19 Cal.4th 743, which clearly hold that neither reasonable suspicion nor any other level of particularized suspicion is required to conduct a parole search. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Appellant also argues the officers could not have really believed he was “the Reseda Slasher” because that suspect was dangerous, yet they did not draw their weapons when they stopped him. However, we are bound by the trial court’s finding that appellant actually resembled the composite sketch of the suspect, which was supported by Vannatter’s testimony that appellant strongly resembled the composite sketch at the time the officers saw him on the street and stopped him. The trial court clearly found Vannatter’s testimony both credible and supported by a comparison of the sketch to appellant’s appearance. Moreover, it is reasonable to conclude that the officers’ decision to contact appellant without drawing their guns was based upon the circumstances and appellant’s demeanor and response. Had appellant engaged in any conduct the officers viewed as potentially threatening, the officers most likely would have drawn their weapons. The officer’s failure to do so at the outset or during the encounter as it actually developed does not definitively render Vannatter’s testimony unworthy of belief.

The trial court therefore did not err by denying appellant’s motion to suppress.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J. FLIER, J.

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Krawetz v. Destiny Properties and Development

Filed 11/29/05 Krawetz v. Destiny Properties and Development CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ADRIENNE KRAWETZ, Plaintiff and Respondent, v. DESTINY PROPERTIES AND DEVELOPMENT, INC., Defendant and Appellant.

B181179 (Los Angeles County Super. Ct. No. BC 311479)

APPEAL from a judgment of the Superior Court for the County of Los Angeles. Aurelio N. Munoz, Judge. Affirmed.

Law Offices of Glenn Ward Calsada and Glenn Ward Calsada for Defendant and Appellant.

Goldfarb, Sturman & Averbach and Steven L. Feldman for Plaintiff and Respondent.

________________________________

SUMMARY

The trial court properly granted a petition to confirm an arbitration award.

FACTUAL AND PROCEDURAL BACKGROUND

Adrienne Krawetz and Destiny Properties and Development, Inc. (Destiny or seller) entered into a written contract in which Krawetz agreed to purchase and Destiny agreed to sell a single family residential property in Los Angeles. The agreement was executed on June 23, 2003 on a standard form for residential purchase agreements in California, and called for arbitration of any dispute or claim “arising between them out of this Agreement or any resulting transaction, which is not settled through mediation . . . .”

Krawetz and Destiny subsequently entered into two further agreements, the first on the following day, June 24, 2003, and another on September 9, 2003, entitled “Pre Purchase Agreement” and “Pre Purchase Agreement II,” respectively. Both agreements involved the same residential property. The first stated that the agreement was “entering the said parties into the escrow process,” and required the seller to complete certain improvements, including bringing “inside house construction” to building code specifications, prior to the purchase. The second agreement was similar, and stated it was “entering the said parties into an extended escrow process.” The second agreement required the seller to complete various items identified in the first agreement and several other items, and extended the time allowed to complete all items to October 20, 2003. Both agreements stated that if Destiny did not complete all of the items, Krawetz would “be entitled to the complete return of her deposit of $10,000 . . . .”

Destiny failed to complete the improvements to the property, refused to convey the property to Krawetz, and refused Krawetz’s demand for mediation. Krawetz filed a complaint for specific performance in superior court, in order to maintain her right to file a notice of lis pendens, and concurrently filed a petition to stay the action and a petition to compel arbitration.

Destiny did not oppose Krawetz’s petition to compel arbitration, and the trial court granted the petition. Krawetz applied to the court for appointment of an arbitrator. The parties subsequently agreed “to submit all disputes, claims or controversies, in or related to the above-referenced matter, to neutral, binding arbitration at JAMS . . . .” The parties further agreed that retired justice William Masterson would serve as the arbitrator, and notified the trial court accordingly, attaching a copy of their stipulation.

Destiny did not file a responsive statement in the arbitration or otherwise comply with the directions and deadlines set by the arbitrator. The arbitrator eventually issued a ruling that precluded Destiny from presenting any counterclaim to Krawetz’s claim, but permitted Destiny to “attempt to defend against that claim at the plenary hearing.” Destiny attended the hearing, and was allowed to cross-examine witnesses, offer direct testimony, and offer exhibits by way of defense.

The arbitrator concluded that Destiny had breached its agreement with Krawetz and that Krawetz was entitled to specific performance. The arbitrator found Destiny agreed to complete various improvements to the property in the two amendments to the purchase agreement; escrow was extended so that the improvements could be completed; and Destiny did not perform as promised and later refused to complete the contract. The arbitration award stated that Krawetz, at her option, was entitled to an order compelling specific performance, as an alternative to an award of monetary damages for breach of contract, along with a money judgment of $61,380 as additional compensation necessary to vindicate her contractual rights. Krawetz was also awarded her costs and attorney fees. The award was subsequently corrected, as to matters not affecting the merits of the controversy.

Krawetz filed a petition to confirm the award, and Destiny filed an opposition to the petition. Destiny argued, for the first time, that the arbitrator exceeded his powers, because the two “pre purchase agreements” did not contain arbitration clauses. According to Destiny, the arbitrator did not have the authority to decide issues related to those documents, which were “stand alone agreements and were not a ‘resulting transaction’ of the [purchase] Agreement . . . .” Destiny also argued that the arbitrator’s award was an unauthorized remedy, because Destiny’s breach of the pre purchase agreements entitled Krawetz only to the return of her deposit.

The trial court granted Krawetz’s petition to confirm the award, ruling that Destiny participated in the arbitration proceedings, did not object to the nature or scope of those proceedings, and could not now object to the arbitrator’s award. Judgment for specific performance, as well as monetary damages, costs and attorney fees, was entered in conformity with the award, and this appeal followed.

DISCUSSION

Destiny contends the arbitrator exceeded his authority on several grounds. All of Destiny’s contentions are meritless.

First, Destiny asserts it did not agree to submit the question of arbitrability to the arbitrator and did not waive its rights by participating in the arbitration. Destiny is mistaken. It did not raise, either in opposition to Krawetz’s petition to compel arbitration or before the arbitrator, the issue of arbitrability of the dispute. Indeed, Destiny expressly agreed “to submit all disputes, claims or controversies” to binding arbitration before Justice Masterson.[1] Destiny’s reliance on Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44 is misplaced for several reasons, including the fact that the plaintiffs in Malek resisted arbitration at every juncture, and the arbitrator in Malek exceeded his authority by reexamining the arbitrability issue previously decided by the trial court. (Id. at pp. 52-53, 56.) The rule applicable here is that “[a] claimant may not voluntarily submit his claim to arbitration, await the outcome, and if the decision is unfavorable, challenge the authority of the arbitrator to act.” (University of San Francisco Faculty Assn. v. University of San Francisco (1983) 142 Cal.App.3d 942, 954.)

Second, Destiny contends the arbitrator exceeded his authority because the “pre purchase” agreements did not contain arbitration clauses, and did not incorporate or refer to the purchase agreement. Again, the argument is without merit. The arbitration clause in the purchase agreement expressly covered disputes arising out of the agreement or “any resulting transaction,” and the arbitrator found as fact that the two “pre purchase” agreements were amendments to the original purchase agreement. While this was an eminently reasonable finding, a court may not in any event vacate an award because of an arbitrator’s factual or legal error. (Moshonov v. Walsh (2000) 22 Cal.4th 771, 775.)

Finally, Destiny claims the arbitrator issued an unauthorized remedy, and that Krawetz’s remedy should have been limited to the return of her deposit. This argument is likewise baseless. Arbitrators have the authority to fashion relief that is just and fair, so long as the remedy “may be rationally derived from the contract and the breach.” (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 383.) This standard was plainly met in this case.

DISPOSITION

The judgment is affirmed. Adrienne Krawetz is to recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

RUBIN, Acting P.J.

FLIER, J.

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[1] Destiny argued in its reply brief and at oral argument that only its lawyer agreed to submit all disputes to binding arbitration before Justice Masterson, and that a client is not bound by an attorney’s stipulation to binding arbitration. (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 407-408 [attorney has no apparent authority to bind his client to an agreement for arbitration; “[w]hen a client engages an attorney to litigate in a judicial forum, the client has a right to be consulted, and his consent obtained, before the dispute is shifted to another, and quite different, forum”]; Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249 [Blanton required a finding of actual consent or ratification by client because client’s substantive rights were potentially impacted by the decision to submit to binding arbitration].) Destiny’s contention avails it nothing in this case, because (1) at no time did Destiny present any evidence or make any argument, either to the trial court or to the arbitrator, that its consent was not obtained to the stipulation to submit all disputes to Justice Masterson; and (2) in any event, Destiny expressly agreed, in the purchase agreement that preceded the events in controversy, to arbitrate any dispute arising out of the purchase agreement “or any resulting transaction . . . .” (See text, post.)

In re Kenneth J.

Filed 11/29/05 In re Kenneth J. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re KENNETH J., et al., Persons Coming Under the Juvenile Court Law.	B182508 B184081 (Los Angeles County Super. Ct. No. LK02175)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. EARLINE J., Defendant and Appellant.

APPEALS from orders of the Superior Court of Los Angeles County, Marilyn K. Martinez, Commissioner. Reversed and remanded.

Joseph D. Mackenzie, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Pamela S. Landeros, Deputy County Counsel, for Plaintiff and Respondent.

________________________

In these two cases, consolidated for purposes of appeal, mother claims the Department of Children and Family Services (DCFS) failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)). DCFS concedes the inadequacy of its notices, and we reverse and remand for compliance.

FACTUAL AND PROCEDURAL SUMMARY

Three dependent children of Earline J. are the subjects of these appeals: Kenneth (born in June 1988), I. (born in August 1998), and Iyana (born in June 2001). In case No. B182508, mother appeals from the denial of her Welfare and Institutions Code section 388 petition for modification. In case No. B184081, mother appeals from orders granting custody of Inesha and Iyana to their father.

DISCUSSION

The only issue mother raises in either appeal is the failure of DCFS to comply with the mandatory notice requirements of ICWA. DCFS concedes the inadequacy of the notices.

We shall reverse and remand both causes for compliance with the notice requirements of the ICWA. After proper notice, a tribe with an interest in the children may assert its rights under the ICWA and either intervene in the state court, or obtain jurisdiction over the proceedings by transfer to the tribal court. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)

Appellant has not challenged the orders of the court on any ground other than failure to comply with the ICWA. Thus, if there is no intervention or assertion of jurisdiction by any tribe after proper notice, the juvenile court’s orders are to be reinstated.

DISPOSITION

The orders are reversed and the causes remanded for compliance with the notice requirements of the ICWA. If, after proper notice, a tribe asserts its right under the ICWA to intervene in the state court, or to obtain jurisdiction over the proceedings by transfer to the tribal court, the cause shall proceed in accordance with the tribe’s election. If there is no intervention or assertion of jurisdiction by any tribe after proper notice, then the juvenile court’s orders shall be reinstated.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P.J.

We concur:

CURRY, J.

WILLHITE, J.

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Kane v. Superior Court

Filed 11/29/05 Kane v. Superior Court CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

DENNIS KANE et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOURDES M. INCLAN et al., Real Parties in Interest.

No. B183789 (Super. Ct. No. LC041017)

ORIGINAL PROCEEDING; petition for a writ of mandate, Leon S. Kaplan, Judge. Petition granted.

Law Offices of Thomas E. Beach, BeachŸWhitman, Thomas E. Beach and Sean D. Cowdrey for Petitioners.

Houck & Balisok, Balisok & Associates, Inc., Russell S. Balisok, Steven C. Wilheim and Patricia L. Canner for Real Parties in Interest.

No appearance for Respondent.

________________________________

After this action was filed, some of the defendants were involved in bankruptcy proceedings and this action was stayed for a time as to them and, later, as to other defendants by an order made by the trial court. About eight years after the action was filed, some of the bankruptcy defendants moved to dismiss on the ground that, discounting the period of the stays affecting them, the plaintiffs had failed to bring the action to trial within five years. The trial court denied the motion, and the moving defendants then sought our intervention by way of a petition for a writ of mandate. We issued an order to show cause and set the matter for hearing, and now conclude the motion should have been granted. We therefore issue the writ as prayed.

FACTS

A.

On May 5, 1997, Lourdes M. Inclan and Juan C. Inclan sued Covenant Care (that is, Covenant Care, Inc., and Covenant Care California, Inc.), Grancare (Grancare, Inc., Grancare Home Health Services, Inc., and GCI Properties, Inc.), and Grancare employees Dennis Kane, Lisa Pitchon-Getzels, and Kay Donald (collectively Kane) for damages for their allegedly inadequate care of the Inclans’ father, who had been a hospice patient at facilities owned and operated by Grancare and others. Defendants answered and discovery ensued.

On January 18, 2000, Grancare’s parent corporation (Mariner Post-Acute Network, Inc.) filed for Chapter 11 bankruptcy protection for itself and its subsidiaries, including Grancare. The resulting automatic stay halted all further proceedings in the Inclans’ action against Grancare. (11 U.S.C. § 362(a).)

B.

In March 2000, in the Inclans’ case, Kane asked the trial court for a determination that Grancare’s automatic stay applied to him or, in the alternative, for a stay of the proceedings against him until the automatic stay was lifted. The Inclans opposed the motion, contending Grancare was not an indispensable party and that their claims against the non-debtor defendants, including Kane, could be fully and completely adjudicated in Grancare’s absence. The trial court denied Kane’s motion.

On December 26, 2000, the bankruptcy court (by a new order) extended the automatic stay to stop all proceedings against all “current or former employees” of Grancare to permit the potential bankruptcy claimants to attempt to resolve their claims through alternative dispute resolution procedures. By its terms, the stay created by the December 26, 2000 order applied to Kane and could remain in effect for up to one year, leaving Covenant Care as the only defendant against whom the Inclans could proceed.

At a January 29, 2001 status conference, the trial court (Hon. Paul Gutman) granted Covenant Care’s oral motion to stay all proceedings against it, “the non-bankruptcy filing defendant[],” pending resolution of the Chapter 11 proceedings and expiration of the bankruptcy stays. The Inclans, who by that time wanted a single trial against all defendants, supported the issuance of the stay requested by Covenant Care. The reporter’s transcript of the January 29, 2001 proceedings, and a subsequent order signed by the trial court on February 9, 2001, are at the heart of the present dispute.

C.

On December 26, 2001, the December 26, 2000 order expired by its own terms, leaving Kane without a stay. On November 26, 2002, the bankruptcy court lifted the automatic stay, thereby ending all bankruptcy obstacles to the Inclans’ action.

On December 19, 2002, the Inclans (after acknowledging that all bankruptcy stays had expired) asked the trial court to stay all proceedings on the ground that they were, at that time, stayed vis-à-vis Covenant Care because a pleading issue raised by Covenant Care was then pending before the California Supreme Court.[1] On January 23, 2003, the trial court (Hon. Leon S. Kaplan) granted the Inclans’ motion and stayed the entire action pending the Supreme Court’s decision. The trial court’s stay was extended several times, then finally vacated on June 2, 2004.

D.

On March 25, 2005, Kane filed a motion to dismiss the action for failure to bring it to trial against him within five years. (Code Civ. Proc., §§ 583.310, 583.340.)[2] Kane claimed the original five-year date (May 5, 2002) was extended during the time the action was stayed against him (365 days for the bankruptcy stay, plus 496 days for the trial court’s stay from January 23, 2003 to June 2, 2004, a total of 861 days) so that the last date on which the action could be tried against Kane was September 13, 2004. Since the case was not tried by that date, Kane claimed a right to mandatory dismissal.

In opposition, the Inclans claimed Kane’s calculations failed to consider the fact that the trial court’s January 29, 2001 order (memorialized in writing on February 9) (1) was based on the stipulation of all parties to stay the action and stayed the proceedings against all defendants, (2) “superseded” the bankruptcy court’s December 26, 2000 order, and (3) was not lifted until June 2, 2004. By the Inclans’ calculation, the five-year deadline was extended by 1,254 days to October 9, 2005 (34 days for the bankruptcy stay before it was superseded by the trial court’s stay of January 29, 2001, plus 1,220 days of the stay under that order to June 2, 2004).[3]

After hearing from both sides, the trial court found that “the dispute [was] over the effect of Judge Gutman’s January 29, 2001 status conference order,” accepted the Inclans' interpretation, and denied Kane’s motion to dismiss. Kane then filed a petition for a writ of mandate, asking us to direct the trial court to rule in his favor. We issued an order to show cause and set the matter for hearing.

DISCUSSION

We agree with the parties and the trial court that the resolution of this issue “turns on the interpretation of the effect of the trial court’s January 29, 2001, stay order,” but disagree with the trial court’s conclusion that the order stayed the proceedings as to Kane.

A.

The reporter’s transcript of the January 29, 2001 proceedings -- at which counsel for all parties were present -- makes it clear that the stay did not apply to Kane.

At the hearing, the Inclans’ lawyer explained that the automatic stay protecting Grancare had been extended to cover Kane, leaving Covenant Care as “the only . . . live” defendant or, as the trial court put it, the only remaining defendant “vulnerable to further litigation in this case” as of January 29, 2001. The Inclans’ lawyer then said it made no sense to proceed to trial (then set for July 30, 2001) without all the defendants because the issues of fact and law were so “interwoven” that it “would complicate beyond measure [the Inclans’] case that’s already going to be complex enough.” Covenant Care’s lawyer agreed.

The trial court said that, to continue the trial date, Covenant Care would have to waive the five-year statute. Covenant Care’s lawyer said she had no authority to do so, but would renew Covenant Care’s motion to stay the action against it until the bankruptcy stays were lifted, and suggested “the court could grant it.” The court agreed, granted Covenant Care’s oral motion to stay the proceedings as to it, and said, “Now all proceedings are stayed . . . . And the stay of proceedings against the non-[bankruptcy defendants] will coincide with the pendency and determination of proceedings in the bankruptcy case.” The only words spoken by the lawyer representing Kane and Grancare were at the end of this discussion when the court asked if she had any objection to the order and counsel responded, “No objection.”

The trial court initially ordered Covenant Care’s counsel to give notice since it was the moving party, but the Inclans’ lawyer “suggest[ed] that all counsel get together on a proposed order with regard to the stay and submit it to [the trial court].” The court agreed: “Yes. Make sure nothing slips through the cracks. . . . And you can submit the order to me.” (Emphasis added.) The Inclans’ lawyer prepared the order, which was approved as to form by Covenant Care’s lawyer but not by Kane’s counsel, and the trial court signed the order on February 9, 2001.

As relevant, the February 9 order states: “It is hereby ordered that all proceedings in this action are stayed as between Plaintiffs Juan C. Inclan and Lourdes Inclan and Defendants Covenant Care, Inc., and Covenant Care California, Inc., pending further order of the Bankruptcy Court . . . . The court notes that, based on the representation of all counsel, all proceedings against defendants Grancare [and] Kane . . . are stayed by order of the Bankruptcy Court.” (Italics added.)

The oral proceedings make it clear that all the lawyers and the trial court understood that the Inclans’ action was already stayed by the bankruptcy court as against Kane and Grancare, and that the only request made and granted on January 29 was for an order staying the proceedings as to Covenant Care. Moreover, the only party to stipulate to that stay was Covenant Care, and the court’s comments demonstrate its intention to have the Covenant Care stay “coincide” with the bankruptcy orders, and to remain in effect only so long as the bankruptcy stays remained in effect as to Grancare and Kane. There is nothing in the transcript or the written order to suggest any of the parties intended the trial court’s order to affect Kane or Grancare, and there is no law to suggest the trial court has the power to issue an order that would “supersede” the bankruptcy court’s orders -- indeed, the law forbids such interference. (11 U.S.C. § 362(a).)

For these reasons, Kane’s calculation of the period during which a stay was in effect as to him is correct.[4] It follows that the five-year period expired before the case was brought to trial against him, and that the trial court should have granted Kane’s motion to dismiss.

B.

To avoid this conclusion, the Inclans claim that, because “the [January 29, 2001] minute order [did] not indicate that a formal order [was] to follow, the minute order [was the] final expression of the court’s ruling” and trumps the subsequently signed order.[5] There are at least two problems with this argument.

First, it completely ignores the court’s oral pronouncements as set out in the reporter’s transcript, and ignores the fact that a judge’s oral pronouncements trump the contents of a clerk-prepared minute order. (In re Daoud (1976) 16 Cal.3d 879, 883; In re Jacob M. (1987) 195 Cal.App.3d 58, 64; People v. Wilshire Ins. Co. (1977) 67 Cal.App.3d 521, 532-533; People v. Hartsell (1973) 34 Cal.App.3d 8, 13.) As is apparent from the discussion above, the reporter’s transcript confirms that a formal order was to be prepared and signed.

Second, the incomplete minute order is not in any event inconsistent with the court’s oral pronouncements, and the formal order makes it clear that, other than as to Covenant Care, the proceedings were stayed by the bankruptcy court’s orders, not by anything the trial court could or did order.

C.

In an alternative effort to avoid the bar of the five-year statute, the Inclans claim (for the first time in these writ proceedings) that, regardless of any stay, it would have been “impossible, impracticable, or futile” to proceed to trial before the Supreme Court determined the punitive damage pleading issue. This claim was waived by the Inclans’ failure to raise it below.

The determination of impracticability must be made in an exercise of the trial court’s discretion and requires consideration of a great variety of factors, and thus is not an issue that can be raised for the first time before a reviewing court. (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2004) ¶¶ 8:229, 8:237, 8:240, pp. 8-135 to 8-139.)

In short, the Inclans’ action against Kane is barred because it was not brought to trial within five years.

DISPOSITION

The petition is granted, and a peremptory writ shall issue commanding the trial court to vacate its April 19, 2005 order denying Kane’s motion to dismiss, and to issue a new order granting that motion and dismissing the Inclans’ action against Kane. Kane is entitled to his costs of these writ proceedings.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

SPENCER, P.J.

MALLANO, J.

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[1] Two years after the Inclans filed this action, they filed a motion for leave to file a fourth amended complaint in which they sought punitive damages under the Elder Abuse and Dependent Adult Civil Protection Act, Welfare and Institutions Code section 15600 et seq. The trial court granted the motion. Covenant Care challenged that order by way of a petition for a writ of mandate which we denied, but the Supreme Court then granted review “to resolve a conflict among the Courts of Appeal as to whether the procedural prerequisites to seeking punitive damages in an action for damages arising out of the professional negligence of a health care provider . . . apply to punitive damage claims in actions alleging elder abuse . . . .” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 776.) On March 25, 2004, the Supreme Court affirmed our judgment. (Ibid.)

[2] Subsequent section references are to the Code of Civil Procedure. Section 583.310 states that “[a]n action shall be brought to trial within five years after the action is commenced against the defendant,” and section 583.340 states that “[i]n computing the time within which an action must be brought to trial . . . , there shall be excluded the time during which . . . [¶] (a) The jurisdiction of the court to try the action was suspended. [¶] (b) Prosecution or trial of the action was stayed or enjoined. [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.”

[3] The Inclans’ claim of additional tolling for mediation (§ 1775.7) fails because, as to Kane, the five-year date came and went (on September 13, 2004), before the case was ordered into mediation on November 24, 2004.

[4] The Inclans do not dispute the fact that the bankruptcy stay expired as to Kane on December 26, 2001 (one year from the date of issuance). Kane’s calculation is based on this 365-day stay, plus the 496 days the Inclans’ action was stayed by the trial court’s orders (from January 23, 2003 to June 2, 2004). Because we agree with Kane that the proceedings against him were not stayed by the trial court’s January 29, 2001 order, we need not address the Inclans’ unexplained assertion that the January 29, 2001 order did not expire until June 2, 2004.

[5] As relevant, the January 29, 2001 minute order states: “On defendant’s oral motion and pursuant to stipulation all proceedings are stayed.” The minute order shows that two defense lawyers were present but doesn’t say which defendant made the oral motion or who participated in the stipulation.

Darulis v. City of San Diego

Filed 11/29/05 Darulis v. City of San Diego CA4/12

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MARK DARULIS, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent.

D046171 (Super. Ct. No. GIC840022)

APPEAL from an order of the Superior Court of San Diego County, S. Charles Wickersham, Judge. Reversed and remanded.

Vehicle Code section 22651, subdivision (k), authorizes a police officer to "remove" (i.e., tow) a vehicle left "upon a highway" for over 72 consecutive hours.^[1] In this appeal, Mark Darulis contends that this statute did not authorize the towing of his van from a public parking lot, and he contests the trial court's decision to the contrary. As discussed below, we agree with Darulis. The trial court's order relies on an erroneous interpretation of section 22651, subdivision (k), and consequently, we reverse and remand.

FACTS

On November 12, 2004, the San Diego police towed a van out of a public parking lot at 3000 Mission Boulevard after observing that the van was parked in the lot for over 72 consecutive hours. Darulis subsequently contested the towing of the van in a "poststorage hearing" before a city official as authorized by the Vehicle Code. (§ 22852, subd. (a).)^[2] At the hearing, Darulis submitted photographs of the parking lot. One of the photographs shows the sign in the lot that states: "Overnight Parking Allowed." The photograph also shows that the parking facility is separate from any adjacent roadway, a fact that the City Attorney does not dispute.

The poststorage hearing officer ruled against Darulis, determining that section 22651, subdivision (k), authorized the towing of the vehicle. Therefore, the vehicle's owner (rather than the City) was required to pay the costs of towing. (§ 22852, subd. (e) ["The agency employing the person who directed the storage shall be responsible for the costs incurred for towing and storage if it is determined in the poststorage hearing that reasonable grounds for the storage are not established"].)

Darulis sought review in the superior court of the hearing officer's determination through a petition for a writ of mandate pursuant to Code of Civil Procedure section 1094.5. In his petition, Darulis claimed that the Vehicle Code provision under which his van was towed applies solely to vehicles parked on a "highway" and therefore did not authorize the towing of his vehicle from the parking lot.

In a written order, the trial court denied the writ. The court ruled that "[e]ven assuming that the writ was procedurally proper, the court finds that the definition of 'highway' is broad enough to encompass a publicly owned and maintained parking lot. Vehicle Code § 360. Therefore, respondent had the authority to tow petitioner's van for a violation of section 22651[, subdivision ](k)."

DISCUSSION

Darulis's appeal consists of a relatively straightforward question of statutory interpretation — whether a parking lot is a "highway" as that term is defined in section 360 — couched in a complex web of procedure. Our analysis is in two parts. First, we review the statutory framework that authorized Darulis's claim in the lower court and determine the proper standard of review of the trial court's order. Second, we apply that standard of review and resolve the question whether in denying Darulis's claim the trial court properly interpreted section 22651, subdivision (k).^[3]

I

The Standard of Review of a Trial Court's Interpretation of a Statute in a

Writ of Mandate Proceeding Is De Novo

Under the Code of Civil Procedure, upon a properly filed petition for a writ of mandate, a court sitting without a jury is empowered to "inquir[e] into the validity of any [discretionary] final administrative order or decision" made after an evidentiary hearing. (Code Civ. Proc., § 1094.5, subd. (a); see also Code Civ. Proc., § 1094.6, subd. (a) [authorizing "[j]udicial review of any decision of a local agency . . . or of any commission, board, officer or agent thereof . . . pursuant to [Code Civ. Proc.] section 1094.5"].)^[4] In such a case, the scope of the court's review is limited to determining, inter alia, "whether there was a fair trial; and whether there was any prejudicial abuse of discretion." (Code Civ. Proc., § 1094.5, subd. (b).) By statute, an abuse of discretion is established if an administrative agency or officer "has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Ibid.)

On appeal of the trial court's determination in a writ of mandate proceeding, this court's review would normally be limited to the sole question of whether the trial court's findings were supported by substantial evidence. (Smith v. Santa Rosa Police Dept. (2002) 97 Cal.App.4th 546, 553-554 [reviewing denial of writ of mandate of poststorage hearing].) Here, however, where "the determinative question . . . is one of statutory construction," we are presented with a "question of law" and proceed under a de novo standard, as we would in reviewing the trial court's interpretation of the meaning of a statute in any other context. (Ibid.; Weinberg v. Cedars-Sinai Medical Center (2004) 119 Cal.App.4th 1098, 1107 [question of "whether the Board applied correct standards in making its decision" is "a question of law that we review de novo"]; Usher v. County of Monterey (1998) 65 Cal.App.4th 210, 216 [in review of mandamus proceeding, "questions of statutory interpretation are questions of law warranting independent review"].)^[5]

II

"Highway" as Defined in the Vehicle Code Does Not Include a

Parking Lot That Is Separate from a Street

Section 22651, subdivision (k), authorizes a police officer to remove a vehicle that is "parked or left standing upon a highway for seventy-two or more consecutive hours in violation of a local ordinance authorizing removal." (Italics added.)^[6] The disputed term "highway" is defined in section 360 as "a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel."

In the instant case, the trial court declined to disturb the determination of the hearing officer that section 22651, subdivision (k), authorized the towing of Darulis's vehicle, citing as the sole basis for its decision that the statutory "definition of 'highway' [contained in section 360] is broad enough to encompass a publicly owned and maintained parking lot," and therefore, the City "had the authority to tow petitioner's van for a violation of section 22651[, subdivision ](k)."^[7]

The trial court's statement of law is erroneous, and is directly contrary to a previous holding of this Court of which the trial court appears to have been unaware. (People v. Lopez (1987) 197 Cal.App.3d 93, 99 (Lopez).)^[8] In Lopez, we held that a provision of the Vehicle Code prohibiting possession of an open alcoholic container in a motor vehicle "upon a highway" (§ 23223) did not apply to prohibit the possession of such a beverage in a public parking lot. (Lopez, at p. 99.) While we noted in Lopez that the term "highway" could, at its limits, be interpreted to include "parking places adjacent to a roadway," such as a "road's shoulder," we held that it did not apply to a parking facility that was not adjacent to a road, where the facility was not "intended primarily for travel but instead was an area primarily intended for parking." (Ibid.) In language that applies with equal force to the facts here, we stated that "[a] parking lot separated from the street is manifestly different in nature from a road's shoulder," and "[t]he fact a parking lot may include some areas available for driving does not make the parking lot a highway." (Ibid.) As we also pointed out in Lopez, the Vehicle Code contains numerous provisions that "distinguish between highways and parking lots; distinctions which would be unnecessary surplusage if 'highway' included 'parking lot.'" (Lopez, at p. 99.)

The City Attorney argues that section 21113, subdivision (c), in concert with a cited municipal ordinance broadens the definition of highway here. Section 21113, subdivision (c), provides that sections of the Vehicle Code "relating to traffic upon the highways shall be applicable to the traffic upon . . . parking facilities." As we stated in Lopez, however, section 21113, subdivision (c) applies only to "traffic" in a parking facility, and so "does not apply where, as here, the public parking lot is being used only for parking." (Lopez, supra, 197 Cal.App.3d at p. 101.)

The City Attorney attempts to distinguish Lopez by arguing that the purpose of the Vehicle Code section at issue here "is to prohibit long term parking," whereas the statute at issue in Lopez, section 23223, was concerned with driving while drinking alcohol. (See Scalf v. Eicher (1935) 11 Cal.App.2d 44, 50 ["The word 'highway' as used in various statutes and ordinances may have [different] meaning[s]"].) We find this asserted distinction unconvincing. Both this case and the Lopez opinion construe the meaning of the same statutory provision — section 360, which provides a uniform definition of "highway" — to be applied throughout the Vehicle Code. We see no justification or logic for construing the legislature's uniform definition of the term "highway" to have different meanings in the different Vehicle Code sections to which it applies. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272 [where statutory scheme is unambiguous, we "presume the lawmakers meant what they said" without "resort to extrinsic sources, including the ostensible objects to be achieved" by the statute].)

As the City Attorney cannot distinguish Lopez, and fails to identify any flaw in the thorough statutory analysis contained in that opinion, we see no reason not to apply its analysis to the case at bar. The application is straightforward. The parties do not dispute that the parking lot at issue, like the "parking lot of the public park" at issue in Lopez, is "separated from the street" and was not "intended primarily for travel but instead was an area primarily intended for parking." (Lopez, supra, 197 Cal.App.3d at p. 99.) Following our decision in Lopez, we conclude the parking lot at issue is not a "highway" under the Vehicle Code. Therefore, section 22651, subdivision (k), does not authorize the towing of Darulis's vehicle. (Lopez, at p. 99.) The trial court erred as a matter of law in determining otherwise. Consequently, we reverse the trial court's order denying the writ and remand for further proceedings consistent with this opinion.^[9]

DISPOSITION

Reversed and remanded.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

^[1] All further statutory references are to the Vehicle Code unless otherwise specified.

^[2] Under section 22852, subdivision (a): "Whenever an authorized member of a public agency directs the storage of a vehicle, as permitted by this chapter, or upon the storage of a vehicle as permitted under this section (except as provided in subdivision (f) or (g)), the agency or person directing the storage shall provide the vehicle's registered and legal owners of record, or their agents, with the opportunity for a poststorage hearing to determine the validity of the storage." Hearings related to the towing of private property have constitutional implications. (See generally David v. City of Los Angeles (9th Cir. 2002) 307 F.3d 1143, 1145, reversed in City of Los Angeles v. David (2003) 538 U.S. 715.)

^[3] At the outset, we reject the City Attorney's assertion that we should deny Darulis's appeal because he assertedly lacked standing to petition for a writ of mandate in the first instance. (See Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 362 [writ of mandate petitioner must have "'some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large'"].) The record before the trial court, which includes a receipt for the vehicle issued to Darulis by the Department of Motor Vehicles, indicates that Darulis was the owner of the vehicle, which is a sufficient basis for standing in this context.

^[4] The City Attorney does not dispute that the poststorage hearing at issue in this case is subject to a writ of mandate under Code of Civil Procedure section 1094.5.

^[5] Thus, the City Attorney is incorrect to the extent he suggests we review the trial court's interpretation of the definition of the statutory term "highway" under an abuse of discretion standard.

^[6] Darulis does not contest that section 22651, subdivision (k), would authorize the towing of his vehicle if the definition of a highway in that statute encompasses a parking lot. According to the City Attorney, the applicable local ordinance triggering the statute is San Diego Municipal Code, section 86.09.06, which states that "[n]o person shall park . . . any vehicle upon any street or highway in excess of seventy-two (72) consecutive hours."

^[7] The City Attorney now references section 21113, subdivision (a), as an additional basis for towing the vehicle, but that provision was not relied on by the police officer who removed the van, the poststorage hearing officer, or the trial court — and with good reason, as it does not appear to apply here. Section 21113 by its terms, applies only if Darulis's van was parked in violation of some applicable city regulation of the lot. (§ 21113, subd. (a) [prohibiting parking on public property "except with the permission of, and upon and subject to any condition or regulation which may be imposed by the legislative body of the municipality [or other governing body]"].) The City Attorney does not identify any such regulation, and itself refers to the parking lot as "a publicly maintained parking lot which gives the public access to Mission Beach and the San Diego Bay." The only record evidence on this subject is the photograph of the lot submitted by Darulis which shows a sign at the lot entrance that expressly states "Overnight Parking Allowed."

^[8] It does not appear that any party cited the Lopez case to the trial court.

^[9] The City Attorney also claims that because Darulis "now requests" that we require the City to "pay damages he incurred to retrieve the van," Darulis "has created a separate cause of action" that makes appeal of the trial court's judgment improper because "other issues, besides the writ, are pending." (See Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th 536, 540 ["absent unusual circumstances, the denial of a petition for writ of mandate is not appealable if other causes of action remain pending between the parties"].) The City Attorney is apparently referencing Darulis's concluding statement that he seeks an "Order directing the trial court to issue the Writ of Mandate directing the respondent to pay for the tow and storage of appellants' [sic] vehicle which is mandatory under [section] 22852[, subdivision ](e)." The City Attorney's argument misunderstands Darulis's request. Darulis merely seeks reversal of the poststorage hearing decision. If granted, this relief automatically shifts the costs of towing from him to the city agency responsible for the towing. (§ 22852, subd. (e).) Thus, Darulis's request is consistent with his petition for writ of mandate, and does not constitute a separate cause of action for monetary damages.