CA Unpub Decisions

A jury convicted defendant and appellant Eliel Benitez (defendant) of (1) assault by means of force likely to produce great bodily injury and (2) carrying a dirk or dagger. The jury also found true allegations that defendant committed the assault for the benefit of, at the direction of, or in association with a criminal street gang and personally inflicted great bodily injury on the assault victim, Reynaldo Jacinto (Jacinto). We consider whether the gang allegation finding must be reversed because aspects of the gang expert’s testimony constituted inadmissible, prejudicial hearsay under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), a case that had not yet been decided at the time of trial. We also consider whether the prosecution introduced substantial evidence supporting the jury’s great bodily injury finding.

Arnold Leong and Warren Havens have been involved, for over 15 years, in contentious litigation regarding the ownership and control of two entities holding licenses issued by the Federal Communications Commission (FCC or the Commission). Twelve years after the action was compelled to arbitration, the trial court appointed a receiver for the assets and granted a preliminary injunction restraining Havens from interfering with the receivership (the Receivership Order). (See Code Civ. Proc., § 1281.8.) Havens appeals from the Receivership Order, pressing a litany of complaints. We affirm.

Law Offices of Allan E. Perry and Allan E. Perry for Plaintiff and Respondent.
Plaintiff and respondent Jon T. Le sued defendant and appellant Robert Mayhall and RVM Capital, LLC (RVM) for breach of contract. Following a bench trial, the trial court found in favor of Le. The trial court found RVM was liable and Mayhall was personally liable. The trial court awarded Le $277,500 plus interest, for a total judgment of $475,475.47. Mayhall raises two issues on appeal. First, Mayhall contends the trial court erred by finding him to be personally liable. Second, Mayhall contends the trial court erred in calculating the damages. We reverse the judgment in part.

Defendant and respondent Shayan Safai rear-ended plaintiff and appellant Malcolm Johnson on the freeway and pushed his vehicle into the vehicle in front of him. Johnson filed this lawsuit, claiming he suffered injuries in the collision, including a herniated disc in his lower back that required fusion surgery. Safai conceded her negligence caused the collision, but disputed Johnson’s claim he suffered a herniated disc and other injuries.
At trial, Safai called a biomechanical engineering expert who testified the relevant scientific data and crash tests established that the accident did not generate sufficient compressive forces to herniate a person’s lower back disc. The expert explained that the seatbelt and airbags in Johnson’s vehicle prevented the significant amount of forward flexion or bending required to herniate a disc. Johnson did not call a biomechanical expert.

It has long been the rule in California that an appealing party may not flagrantly disobey court orders concerning the subject of the appeal without risking dismissal. This case presents no exception, and we dismiss the appeal under the disentitlement doctrine.

Defendant and cross-complainant Open Text, Inc. (Open Text or defendant) appeals from the denial of a preliminary injunction. Plaintiff and cross-defendant Instant InfoSystems, Inc. (Instant InfoSystems or plaintiff) and Open Text had a prior contractual relationship. Instant InfoSystems serviced a product, RightFax, belonging to defendant. After the business relationship ended, defendant allegedly made it known to customers that plaintiff was not permitted to service RightFax, which plaintiff disputed. Instant InfoSystems sued Open Text for intentional interference with a contractual relation and violation of the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.).

The Los Angeles County Department of Children and Family Services (DCFS) alleged under Welfare and Institutions Code section 300, subdivision (a) that mother exposed then eight-year-old S.S. to a detrimental home environment, in which mother and S.S.’s maternal grandfather (MGF) engaged in physical altercations, including one during which MGF struck S.S.’s head. Under section 300, subdivision (b), the petition alleged that mother had failed to obtain timely, necessary medical treatment for an extended period for S.S.’s severe urinary tract infection, and also alleged that the altercations between MGF and mother endangered S.S.

In November 2016, S.F., then three years of age, and her two older half-siblings, J.K. and A.K., came to the attention of San Bernardino County’s Children and Family Services Agency (CFS) based on allegations mother had been using methamphetamine, was involved in domestic violence with her boyfriend, was acting paranoid, and had been evicted from her apartment. The presumed father of J.K. and A.K. requested custody of his children, and they were sent for an extended visit prior to the jurisdictional hearing. In the meantime, CFS undertook assessments of the maternal grandparents’ home, as well as the home of a maternal uncle. Mother did not fully cooperate with CFS and failed to appear at the jurisdictional/dispositional hearing, where the court placed J.K. and A.K. with their father, made exit orders and dismissed the dependency as to them.

Parties to a settlement agreement can enforce that agreement in at least two ways; with a breach of contract action, or, if the trial court has retained jurisdiction to enforce the settlement agreement, by a motion pursuant to Code of Civil Procedure section 664.6. Here, Shawn and Evan Libaw attempted via section 664.6 to enforce their settlement agreement with their sister, Patrice Libaw Nikopoulos. Patrice appeals from the resulting probate court judgment entered in her brothers’ favor. Among other points of error, Patrice contends the probate court did not retain jurisdiction to enforce the settlement agreement after she voluntarily dismissed her case. Evan and Shawn cross-appeal, arguing the trial court abused its discretion when it awarded less attorney fees than they requested. Because we find the court lacked jurisdiction to enforce the settlement agreement, we reverse.

D.T. (Mother) appeals from the juvenile court’s order denying her petition for modification, filed pursuant to Welfare and Institutions Code section 388, and ordering a permanent plan of legal guardianship, pursuant to section 366.26, with respect to her son, Malachi. On appeal, Mother contends the court abused its discretion when it denied her section 388 petition without a hearing. We shall affirm the juvenile court’s orders.

Claudia C. (mother) appeals from the juvenile court’s order of dependency jurisdiction over I.C. (child), age nine, under Welfare and Institutions Code section 300, subdivision (b)(1) (failure to protect), on the ground that no substantial evidence supports the order. Because the evidence was insufficient to show a substantial risk of serious physical harm or illness to the child, we reverse.

Emiliano G., now 16 years old, was declared a ward of the juvenile court and placed on probation after admitting to a misdemeanor count of public intoxication. He then violated the terms of his probation some months later, when he showed up at his high school intoxicated again. Following Emiliano’s admitted probation violation, the juvenile court imposed a condition of probation authorizing warrantless searches of his electronic devices. Emiliano now appeals the disposition order, challenging the electronics search condition under People v. Lent (1975) 15 Cal.3d 481 (Lent) and as constitutionally overbroad. We conclude the condition must be stricken, because it does not pass muster under Lent.

Pierrick Brillouet and Yong Brillouet (the Brillouets) appeal judgment after a court trial in this unlawful detainer action. They separately appeal a postjudgment order awarding attorney’s fees. The court awarded Coastline RE Holdings Corporation (Coastline) possession, $44,760.83 in damages for 10 months of lost rent, and $210,000 in contractual attorney’s fees.
Coastline filed this action as an unlimited civil action, but a superior court clerk mistakenly designated it as limited. The Brillouets contend it is a limited civil action and thus the court exceeded its jurisdiction when it awarded Coastline $44,760.83 in damages for lost rent and heard a motion for attorney’s fees more than 30 days after notice of entry of judgment. They also contend the $210,000 fee award is not authorized by contract and is excessive. We affirm.

Mark Burcaw appeals from a civil judgment granting a permanent injunction enjoining him personally and as managing partner of Tap Group, LLC (Tap), from leasing the subject real property (the property) to any medical marijuana dispensary not having a business license or a certificate of occupancy or not meeting the zoning requirements. He contends the judgment should be reversed because he did not perform any activity to be enjoined and there is no legal basis to enjoin a property manager. We disagree and affirm the judgment.