CA Unpub Decisions

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P.
Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant George Valdez was convicted of multiple offenses
growing out of the abuse of his former stepdaughter and his stepdaughter's younger
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friend. The abuse of the stepdaughter began when she was six years old, continued until
she was 12 years old and involved multiple acts of vaginal and anal intercourse as well as
oral copulation; Valdez's abuse of his stepdaughter's friend began when the second victim
was eight and involved digital penetration, attempted sodomy, sodomy and separate lewd
acts.

Bahman Khodayari, a self-represented litigant, appeals from the order dismissing his legal malpractice action against his former attorney Alexander H. Escandari and related entities, Escandari & Michon, P.C. and Escandari Law Firm, Inc. (collectively Escandari), as a terminating sanction for violating an October 2012 discovery order, as well as the award of monetary sanctions made as part of the earlier discovery order. Khodayari also contends the trial court erred in referring discovery motions he had filed to a discovery referee while deciding Escandari’s discovery motions itself. We reverse.

A jury convicted defendant Michael James White of multiple crimes including two
counts of misdemeanor child endangerment. (Pen. Code, § 273a, subd. (b).)
1 On appeal
he contends the trial court erred in instructing the jury on direct infliction of child abuse,
instead of indirect infliction of child abuse. The People concede instructional error but
maintain the error was harmless beyond a reasonable doubt. We agree with the People.

Defendants, Kendal Vernon Johnson, Keith Jermaine Fuller and Dashawn Combs, were convicted after jury trials of: first degree murder with special circumstances (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)); attempted willful, deliberate, premeditated murder (§§ 664, 187, subd. (a)); first degree burglary with a person present (§§ 459, 667.5, subd. (c)(21)); and home invasion robbery (§ 211). Mr. Fuller and Mr. Combs were jointly tried before separate juries. Mr. Johnson was separately tried. The juries also found true gang and firearm use enhancement allegations. (§§ 186.22, subd. (b)(1)(C), 12022.53.) Mr. Johnson was sentenced to life without the possibility of parole plus 80 years to life. Mr. Fuller was sentenced to life without the possibility of parole plus 50 years to life plus 18 years. Mr. Combs was sentenced to life without the possibility of parole plus 15 years to life plus 10 years. We modify the judgments and affirm as modified with directions.

In this construction defect lawsuit by a homeowner, the jury found the general
contractor -- defendant Estate of William G. Davidson, formerly Davidson Construction
(Davidson) -- negligent and liable for some, but not all, alleged violations of building
standards under the Right to Repair Act, Civil Code section 895, et seq. (the Act). The
estate is a proper party where the decedent was protected by insurance. (Prob. Code,
§ 550.) (Unless otherwise noted, statutory references that follow are to the Civil Code.)
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The estate is a proper party where the decedent was protected by insurance. (Prob. Code,
§ 550.) The Act makes the builder who sells homes liable for violations without proof of
negligence (§§ 911, 942), while general contractors and subcontractors not involved in
home sales are liable only if the plaintiff proves they negligently caused the violation in
whole or part (§§ 911, subd. (b), 936).

Defendant Syed Shah was arrested after officers observed him driving a stolen vehicle. He proceeded to trial on one felony count of unlawfully driving or taking a vehicle without the owner’s consent in violation of Vehicle Code section 10851, subdivision (a), where he testified that he purchased the vehicle and was unaware it had been stolen. The jury convicted him. On appeal, defendant asserts instructional error, ineffective assistance of counsel, and cumulative error claims. We affirm.

Defendant Richard Carlton Davidson appeals from the judgment entered after remand for resentencing by this court. In part, the trial court resentenced defendant to a term of 25 years to life for his conviction of felony child abuse (Pen. Code, § 273a, subd. (a)). On appeal, he argues that because he was resentenced after the effective date of the Three Strikes Reform Act (the Act), the Act applies prospectively to him. Thus, he insists the 25-year-to-life sentence for his conviction of section 273a, subdivision (a) is unauthorized because it is not a serious or violent felony under the Act. Defendant also argues the trial court erred in calculating the court security fee imposed under section 1465.8 and the court facilities assessment imposed under Government Code section 70373. We reject defendant’s argument that he is entitled to resentencing under the Act but agree that the trial court erred in calculating his fees. We modify the judgment to reflect the correct amount of f

Plaintiff Stacey Ogle appeals from the trial court’s order denying her motion to
certify a class of current and former call center customer service representatives who
allegedly were required to take meal breaks late or denied meal breaks altogether, and
were underpaid overtime by defendant Restoration Hardware, Inc., in violation of
California wage and hour laws. The trial court ruled that a class action was not a superior
means of handling the litigation given the evidence submitted, finding that Ogle failed to
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demonstrate the existence of an ascertainable and numerous class, a predominance of
common questions of law or fact, or adequacy as a class representative.

Defendant and appellant, Robert Navarro Zurita, filed a petition for reclassification of his first degree burglary conviction pursuant to Penal Code section 1170.18, which the court denied. After defendant filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and identifying one potentially arguable issue: whether defendant was eligible for resentencing pursuant to section 1170.18. We affirm.

After defendant’s counsel below filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and identifying four potentially arguable issues: (1) whether defendant was advised of the consequences of his plea; (2) whether defendant was advised of his constitutional rights; (3) whether defendant waived those rights; and (4) whether the court abused its discretion in imposing the midterm of three years’ imprisonment. We affirm.

On October 17, 2014, Duffy filed a complaint against cross-defendant and respondent David Alan Paternostro. On January 5, 2015, Duffy filed a first amended complaint (FAC).
On February 13, Paternostro filed a cross-complaint against Duffy. The causes of action included (1) breach of contract; (2) negligence; (3) breach of implied warranties; (4) intentional misrepresentation; (5) negligent misrepresentation; (6) fraudulent inducement; (7) recovery of money paid to unlicensed contractors; and (8) injunctive relief prohibiting mechanic’s liens.

T.M. is now 10 years old. For most of his life, his father, Nathan M. (father), and
mother had antagonistic relations, including in the course of contentious litigation
regarding custody of and visitation with T.M. There is also evidence that they each
engaged in behaviors that contributed to their antagonistic relations and flawed parenting
of T.M., including father’s unaddressed substance abuse and mother’s excessive use of
corporal punishment on T.M. T.M. was seriously and negatively affected by these years
of antagonism and behaviors, and developed serious emotional difficulties as
demonstrated by his aggressive and violent misconduct throughout much of his time in
elementary school.

Bentley-Wing Property W, LLC (BWPW) appeals from a judgment under Code of Civil Procedure section 631.8 in favor of defendants West Development Inc. (Development) and West Partners, LLC (Partners) on its claims for breach of contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary duty. As we shall discuss, the trial court erred in interpreting portions of the parties' operating agreement. Accordingly, we reverse the judgment and remand the matter for further proceedings in accordance with this opinion.

We consider together two appeals filed by Ponani Sukumar and his corporation,
Southern California Stroke Rehabilitation Associates, Inc. (together plaintiffs).1 Both
appeals stem from summary judgments entered against them on their complaint against
defendants Dean Sbragia and Med-Fit Systems, Inc. (Med-Fit, together defendants) on
multiple causes of action related to defendants' failure to return a deposit for the purchase
of exercise equipment. As we shall explain, the claims against Sbragia are barred by the
doctrine of res judicata; accordingly, we affirm the judgment in his favor. We also grant
his motion for sanctions. The judgment in favor of Med-Fit is also affirmed. Med-Fit's
motion for sanctions is denied.