CA Unpub Decisions

This lawsuit seeks coercive relief to enforce a declaratory judgment obtained in a prior lawsuit.
In the prior declaratory relief action, commercial landlords of a shopping center sought a declaratory judgment that their tenant, defendant Bel Air Mart, was violating the lease by keeping in the common area behind the store, racks, bins, carts (operational equipment) for loading and unloading merchandise and trash. The trial court found such use permissible. In a prior appeal, we disagreed and held the lease allowed loading and unloading but precluded Bel Air from “commandeer[ing]” the common area “for its own storage purposes” beyond loading and unloading. (Muzzi v. Bel Air Mart (2009) 171 Cal.App.4th 456, 466-467 (Muzzi I).) On remand, the trial court issued an amended declaratory judgment that the lease did not allow “storage” in the common area beyond loading and unloading.

Plaintiff and appellant Sarah McKinney (Employee) sued defendants and respondents Primary Care Medical Group of Inland Empire, Inc. (Medical Group) and Sunil Arora, M.D. (Arora) for (1) discrimination; (2) violation of the California Family Rights Act; (3) retaliation; (4) wrongful termination; (5) failure to pay overtime wages; (6) failure to pay wages within the applicable time limits; (7) failure to provide itemized wage statements; and (8) failure to maintain records.
Following a bench trial, the trial court found in favor of Medical Group and Arora (collectively, Employer). Employee contends the trial court erred by (1) offsetting unpaid overtime wages with money that Employee received from Employer; (2) failing to award interest on unpaid overtime wages; (3) not awarding statutory penalties; and (4) deducting Employee’s excess break time from Employee’s overtime wages. We affirm the judgment.

Did the trial court abuse its discretion by allowing Julius Rayart Lockett, Jr., to file a responsive pleading five days after the hearing on his motion to set aside a five-year domestic violence restraining order pursuant to Code of Civil Procedure section 473? Marnie Lynch contends the court erred as a matter of law by setting aside the order because Lockett failed to accompany the application for relief with a copy of his answer as mandated by section 473. We conclude that Lockett’s filing of an answer within the five days allowed by the court constitutes substantial compliance with the statute and the court did not abuse its discretion by extending a short grace period to defendant under the circumstances presented here. The order is affirmed.

Jose V. (father), in propria persona, seeks extraordinary writ review (Cal. Rules of Court, rules 8.450-8.452) of the juvenile court’s orders terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his now two-year-old son, Evan. Father contends the juvenile court’s ruling is error because he fully complied with his reunification plan. We deny the petition.

Petitioner Conrad Velez was sentenced to consecutive indeterminate sentences of 25 years to life in prison following his no contest plea to two counts of murder. The trial court denied his request for a certificate of probable cause. Velez filed a petition for a writ of mandate in this court seeking an order directing the superior court to issue the certificate. He also appealed the judgment, and the record of the proceedings and opening brief have been filed. Where necessary, we have reviewed the record in Velez’s appeal for facts material to the disposition of this petition for mandate.
We requested opposition and notified the parties pursuant to Palma v. U.S. Industrial Fasteners (1984) 36 Cal.3d 171, 180 that, if warranted in the circumstances, we would issue a peremptory writ in the first instance. We do so.

Defendant Harold Holman was charged on August 4, 2015, and convicted on July 13, 2016, of a first degree murder committed on August 27, 1972. Defendant beat the 79-year-old victim to death in her home. On appeal from the judgment, defendant argues the nearly 43-year precharging delay prejudiced his ability to defend himself in violation of his fair trial and due process rights under the federal and state Constitutions (U.S. Const., Amends. 5, 14; Cal. Const., art. I, § 15.) We conclude the trial court did not abuse its discretion when it denied defendant’s motion to dismiss on those grounds. Accordingly, we affirm the judgment.

After a two-day court trial, which included testimony from four witnesses and 20 documentary exhibits, the trial court entered judgment against defendants, cross-complainants and appellants Maggie Wu (Wu), Pro-A Motors, Inc. (Pro-A), and defendant and appellant Benny Lin (Lin), and in favor of plaintiff, cross-defendant and respondent Brian Shin (Shin), in the amount of $144,981.65, plus interest in the amount $29,829.72. On appeal, appellants challenge the judgment against them based upon (1) insufficiency of the evidence, (2) the trial court’s failure to provide a written statement of decision, and (3) the trial court’s execution and filing of the proposed written judgment lodged by Shin before the time period for objections to the lodged written judgment had passed.

The trial court granted summary judgment against plaintiff and appellant Joseph L. Shalant, and in favor of defendant and respondent Robert Mackston on plaintiff’s sole cause of action for intentional infliction of emotional distress. The trial court determined that plaintiff did not demonstrate a triable issue of fact as to whether or not plaintiff suffered severe emotional distress. Although both the record below and plaintiff’s briefing in this court are, as will be shown, problematic, we believe the record, considered as a whole, does disclose a triable issue of fact as to the existence of this element of plaintiff’s cause of action. Thus, we reverse the trial court’s grant of summary judgment against plaintiff.

Petitioner Brandon Ruiz-Martinez is a defendant in a gang-related double murder prosecution pending in Santa Cruz County Superior Court. Six other defendants (the Escobar defendants) were arrested in late 2014 and held to answer on October 6, 2015, following a lengthy preliminary hearing. Petitioner, who was not apprehended and arrested until November 2015, was charged by separate indictment in April 2016. An eighth defendant, Marcos Robles, was separately indicted at the same time. The prosecutor moved under Penal Code section 1098 to join petitioner and Robles with the Escobar defendants for a single trial. Petitioner opposed that motion and asserted his right to a speedy trial. The trial court granted the prosecutor’s motion, but simultaneously set petitioner for his own trial in August 2016, within the 60-day statutory period established by section 1382.

Appellant, the defendant in trial court proceedings, appeals from an order denying its motion to seal material in the court file of this settled wrongful death case. We shall affirm the order.
This case arises out of asbestos litigation. The plaintiffs are the widow and children of William Paulus, who died in December 2009 as a result of mesothelioma. Mr. Paulus was a plumber, and it is alleged that the mesothelioma was the result of his exposure to pipes coated with a substance containing asbestos, and that the pipes were manufactured and sold by J-M Manufacturing Co. (referred to here as “J-MM” and sometimes in quoted materials as “JM”).

Defendant shot and killed his father, Foung Yang (Foung), near the doorway of defendant’s apartment. In his subsequent interrogation, defendant did not say that Foung had molested him as a child, had molested defendant’s children, or had threatened to kill defendant earlier that day. However, defendant did make those claims in his testimony at trial. Nonetheless, he was convicted of first degree murder.
On appeal, defendant argues the court erred by (1) failing to instruct the jury on heat of passion theory of manslaughter; and (2) by instructing the jury that self-defense only applied if, inter alia, defendant “used no more force than was reasonably necessary to defend against that danger.”
We reject both contentions and affirm the judgment.

Defendant Timothy Wilcox challenges an order denying in part his motion for return of property that had been seized from him when he was arrested for possessing child pornography. We shall construe this purported appeal as a petition for writ of mandate and deny the petition.

A jury convicted defendant Damir Shalako of rape and other crimes against a friend of his grandmother’s. He challenges the trial court’s modification of the standard CALCRIM instructions defining penetration. Finding no error or prejudice, we affirm.

Defendant, Tyrone Sanders, appeals from a judgment of commitment as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). Defendant argues: “[T]he trial court fundamentally and prejudicially erred in admitting [hearsay] evidence regarding [defendant’s] alleged rules violations and sexual misconduct while in prison or the state hospital, including specifically with respect to the alleged July 6, 2015 masturbation incident, the facts of which were disputed by [defendant].” Defendant raised this issue in the trial court. On appeal, defendant relies on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which was decided three days after defendant filed his notice of appeal. We agree reversal is required under Sanchez.