CA Unpub Decisions

JHM Ventures (Plaintiff) filed a complaint against Cavalier Closeouts, Inc. and Eyal Dahan (together Defendants) alleging they breached written contracts related to three business deals. The court entered judgment for Defendants after finding Plaintiff failed to prove the existence of two of the alleged contracts, its claims were barred by the statute of limitations, and it failed to show it suffered damages. The court subsequently awarded Defendants attorney fees under Civil Code section 1717. On appeal, Plaintiff argues the court erred by (1) applying the wrong legal analysis in concluding its claims were barred by the statute of limitations, (2) finding it failed to prove damages, and (3) awarding Defendants attorney fees related to claims for which there were not written contracts in evidence. We affirm.

In 1999, appellant Jose Alberto Alcantar Vazquez was convicted of first-degree murder (Pen. Code, §§ 187, subd. (a), 189) and other crimes. The jury also found true special circumstance allegations that the murder occurred during the commission of an attempted kidnapping and burglary (§ 190.2, subds. (a)(17)(B) & (G)). In 2019, appellant filed a petition for resentencing under section 1170.95. In denying the petition following an evidentiary hearing, the trial court found appellant was ineligible for relief under section 1170.95 because the evidence, when viewed in light of the factors set forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), was sufficient to support the jury’s true findings on the felony-murder special circumstance allegations, i.e., that appellant was a major participant in the burglary and attempted kidnapping and acted with reckless indifference to human life.

In 2017, a jury convicted defendant and appellant Trevail Gray of multiple felonies, including three counts of attempted murder. The jury found true the allegations the attempted murders were willful, deliberate and premeditated and that they were committed for the benefit of a criminal street gang. It also found true that a principal discharged a firearm in the commission of the offenses. Defendant, who admitted a prior qualifying strike, was sentenced to 147 years to life in prison.
Defendant appealed. In an opinion filed October 1, 2018, we struck the gang enhancements and, in light of legislation passed while the appeal was pending (Senate Bill 620 (2017–2018 Reg. Sess.)), we remanded to permit the trial court to consider whether to exercise its newly acquired discretion to strike the Penal Code section 12022.53 firearm enhancements. We otherwise affirmed the judgment.
Defendant petitioned the Supreme Court for review.

Pursuant to a plea agreement, defendant Martin Corona Benites pleaded no contest to one count of attempted murder (Pen. Code, §§ 664, 187) with an enhancement for personal and intentional discharge of a firearm (Pen. Code, § 12022.53, subd. (c)). On October 30, 2017, the trial court sentenced defendant to a term of 29 years, consisting of the upper term of nine years for the attempted murder charge and 20 years for the enhancement.
After filing motions to reconsider his sentence, a habeas petition, and a prior appeal with this court—all of which were unsuccessful—defendant on April 9, 2021, filed a document styled as a “motion to vacate conviction or sentence (Pen. Code, §§ 1016.5, 1473.7).” Defendant’s motion consisted of a Judicial Council form and numerous pages of handwritten material and exhibits. The trial court noted that defendant’s motion was “difficult to parse, listing numerous citations to statutes and case law, but containing little to no facts or analy

Nationwide Biweekly Administration, Inc. (NBA); Loan Payment Administration LLC (LPA; together with NBA, “Nationwide”); and Daniel S. Lipsky appeal from a trial court order denying their petition to vacate an arbitration award and the trial court’s judgment confirming that award. The arbitration resolved a claim for unpaid legal fees by Ponist Law Group, P.C. and Sean E. Ponist (together, Ponist), who were formerly counsel to Nationwide and Lipsky. Nationwide and Lipsky contend the trial court erred in ruling that they were properly served with Ponist’s petition to appoint the arbitrator. Lipsky also argues the trial court erred in failing to vacate the award against him because Ponist’s fee agreement with him was void for violating public policy. We conclude the trial court properly denied Nationwide and Lipsky’s petition to vacate the award and will affirm the judgment.

A jury found defendant Trumillion Ballard guilty of, among other things, first degree murder (§ 187, subd. (a)), and it found true a firearm enhancement that Ballard “personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury.” (§ 12022.53, subd. (d); People v. Ballard (Feb. 22, 2021, A155287) [nonpub. opn.], review granted May 12, 2021, and cause remanded Apr. 27, 2022, S267308 (Ballard).) In August 2018, the trial court sentenced Ballard to 50 years to life in prison — 25 years to life for the first degree murder conviction and a consecutive 25 years to life for the firearm enhancement. (Ballard, A155287.) Without stating its reasons, the court rejected Ballard’s request that it exercise its discretion under section 12022.53, subdivision (h) to strike the firearm enhancement. (Ballard, A155287.)

In 2015, Paula Thomas and her company, PDTW, LLC (PDTW), filed a lawsuit for various employment and business claims related to a 2014 business deal. While that lawsuit was pending, PDTW filed for chapter 7 bankruptcy. PDTW did not disclose any potential claims against third parties on its initial bankruptcy schedule of assets, nor did it ever supplement its schedules to disclose those claims.
In the present action, PDTW attempts to sue its former attorneys and accountants for professional malpractice, fraud, and related claims arising out of their involvement in and handling of the 2014 business deal, the 2015 employment lawsuit, and the 2016 bankruptcy petition.

D.W. appeals from an order reappointing the Santa Cruz County Public Guardian as conservator of his person under the Lanterman-Petris-Short Act (LPS Act) (Welf. & Inst. Code, § 5350 et seq.) after the trial court found him to be gravely disabled as defined under section 5008, subdivision (h)(1)(B).
While his appeal was pending, D.W.’s conservatorship expired. Having considered the parties’ supplemental briefing on whether the appeal is now moot, we dismiss the appeal.

Defendant Gustavo Armando Castaneda, Jr., pleaded no contest to stalking, violating a protective order, and assault by means of force likely to produce great bodily injury. He admitted he had suffered a prior strike conviction. The trial court sentenced Castaneda to a total term of five years four months in prison and imposed various fines and fees.
Castaneda contends the trial court erroneously imposed the fines and fees without determining his ability to pay them as required under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). To the extent the claim was forfeited by his trial counsel’s failure to object, he argues counsel rendered ineffective assistance. Castaneda further argues that a recent change in the law requires that we vacate the criminal justice administration fee imposed under former Government Code section 29550.1.

Defendant Thanh Van Ung pleaded no contest to stalking (Pen. Code, § 646.9, subd. (a)), vandalism (§ 594, subd. (b)(2)(A)), and dissuading a witness (§ 136, subd. (c)(1)). Because the victim of these offenses was Ung’s estranged wife, the trial court granted Ung probation in accordance with section 1203.097, including the minimum three-year term of probation required by section 1203.097, subdivision (a)(1).
On appeal, Ung asks that we now reduce his probation term to two years, under section 1203.1, subdivision (a) as amended after his sentencing in Assembly Bill No. 1950 (2019-2020 Reg. Session) (A.B. 1950). His appeal accordingly calls for us to resolve the apparent conflict between section 1203.1 as amended and section 1203.097, by interpreting section 1203.1, subdivision (l), the exception to the new legislation’s two year maximum.

Defendant Gary Swierski appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.95. For the reasons set forth below, we dismiss the appeal.

A jury found defendant Jose Luis Mendoza guilty on five counts arising from the improper handling of materials containing asbestos and one count of contracting without a license, all misdemeanors. The trial court suspended imposition of sentence and granted a two-year conditional sentence with various terms including 180 days in county jail.
Mendoza contends the evidence was insufficient to support convictions on two counts: failing to thoroughly inspect for regulated asbestos-containing materials, and failure to have a competent person present during the disturbance of the materials.
For the reasons below, we conclude sufficient evidence supported the convictions. We will affirm the judgment.

Plaintiff Zhixun Sun Samuel (Sun) brought this action against his former employer, defendant The Permanente Medical Group, Inc. (TPMG), for age discrimination, national origin discrimination, retaliation against whistleblowing, wrongful termination in violation of the California Family Rights Act (CFRA), wrongful termination in violation of public policy, breach of the covenant of good faith and fair dealing, and punitive damages. The trial court granted TPMG’s motion for summary adjudication, and entered judgment in TPMG’s favor, denying Sun’s request to continue the hearing on the summary judgment motion, and denying Sun’s motion to compel further discovery responses. Sun appeals. We affirm.

In 2015, Paula Thomas and her company, PDTW, LLC (PDTW), retained the law firm of Kring & Chung, LLP (Kring & Chung) to file a lawsuit for various employment and business claims. While that lawsuit was pending, PDTW filed for chapter 7 bankruptcy. PDTW did not disclose any potential claims against Kring & Chung on its initial bankruptcy schedule of assets, nor did it ever supplement its schedules to add those claims.
In the present action, PDTW attempts to sue Kring & Chung for legal malpractice, fraud, and related claims arising out of its handling of the underlying action. The trial court sustained Kring & Chung’s demurrer to PDTW’s complaint, finding, among other things, that PDTW’s failure to disclose the present claims in the bankruptcy proceedings judicially estopped it from pursuing the subject action. We agree and therefore affirm the judgment.