CA Unpub Decisions

This is a medical malpractice and loss of consortium action brought by plaintiffs and appellants Dee Ann Abelar and her husband Brian Abelar (plaintiffs) against, as pertinent here, defendant and respondent Joung H. Lee, M.D. Plaintiffs appeal from a judgment entered after summary judgment in Lee’s favor.
Lee is a neurosurgeon who performed a craniotomy on Dee Ann in early October 2015. Approximately six weeks after the surgery, Dee Ann began experiencing neurological symptoms including seizures, and was treated by Lee as well as several other physicians at a local hospital. Eventually, in mid-December 2015, Dee Ann was admitted to USC Keck Medical Center. There, doctors discovered an infection. Plaintiffs contend Lee, among others, negligently failed to diagnose and treat the infection.

Donna Chon (appellant) appeals from an order denying her motion to set aside entry of default and default judgment in this action against her for breach of contract, fraud—intentional misrepresentation, fraud—negligence, and common count—money lent. Appellant also challenges the trial court’s implicit denial of her motion to quash service of summons and the implicit overrulings of her evidentiary objections. We find no error in the trial court’s orders and rulings and affirm.

Defendants EOTFR, LLC d/b/a ICM Partners (ICM), Cindy Ballard, and Chris Silbermann appeal from the trial court’s order denying their motion to compel plaintiff Spencer Baumgarten to arbitrate his claims arising out of his employment at the company. ICM contends the court erred in finding the parties did not enter into an agreement containing an arbitration provision. We affirm.

Sarah Woo (Woo) and Sam S. Jung (Jung) (collectively, plaintiffs) obtained a default judgment against Joon W. Kim (Kim) and C4 Capital Partners, L.P. (C4) (collectively, defendants). We consider whether the trial court correctly denied defendants’ motion, filed well over a year later, to set aside the default judgment on defective service grounds.

In a prior opinion regarding this appeal from the denial of a petition for relief under Penal Code section 1170.95, we concluded appellant Myra Rangel was ineligible for relief as a matter of law because her convictions for attempted premeditated murder and conspiracy to commit murder were outside the scope of the statute. Our Supreme Court granted review and transferred the matter back to this court, with directions that we vacate our prior decision and reconsider the cause in light of Senate Bill No. 775 (Reg. Sess. 2021-2022) (SB 775). After reconsidering the cause, we conclude that appellant remains ineligible for relief as a matter of law. We therefore affirm.

Following a bench trial, the trial court found Emeterio Figueroa guilty of the execution-style murder of developmentally-disabled Duke Herrera, who possessed the mental capacity of a 12-year-old. Figueroa lived in a riverbed homeless encampment, carried guns, abused substances, and was known to behave erratically. The murder occurred at night while Herrera was riding his bicycle home from a movie along the bank of the riverbed. In addition to murder (count 1), Figueroa was convicted of assault with a firearm on John Doe (count 2), and possession of a firearm (count 4). He raises a host of challenges on appeal, which we address seriatim.
Figueroa first argues that his jury trial waiver was not knowing and intelligent, but this contention is belied by the totality of circumstances, most notably the waiver colloquy between Figueroa and the prosecutor.

Defendants Enjoy Technology, Inc. (Enjoy), Christopher Harris, and Jasmin Staubli appeal from an order that denied their motion to compel Christopher Reese to arbitrate his claims against them. We affirm.

A San Jose police officer stopped a car driven by 17-year-old A.A. at 3:25 a.m. because it was traveling over the speed limit, ran through a red light, and appeared to lose control as it turned 180 degrees in the middle of the roadway. Before approaching the car, the officer called for backup based on seeing more than one person in the car and being in an area known to the officer to be frequented by gang members. Two other officers arrived four minutes later.
The officer who made the initial stop saw the driver (A.A.) moving in and out of view in the car’s side mirror and was concerned he might be retrieving or hiding a weapon. He ordered A.A. out of the car and handcuffed him, and another officer took A.A. behind one of the patrol cars. The two passengers in the car were also ordered out and handcuffed. As one passenger was being handcuffed, an officer asked if he was on probation and he replied that he was.

In a petition for writ of habeas corpus, petitioner Stephen Guice contended that a regulation promulgated by the California Department of Corrections and Rehabilitation (CDCR) that excludes inmates currently serving a term for a violent felony offense from nonviolent offender early parole consideration was contrary to article I, section 32, the constitutional provision mandating early parole consideration that was enacted by voters through their approval of Proposition 57. Petitioner, who is currently convicted of one violent and several nonviolent felony offenses, asserted that under section 32’s plain language, he is entitled to nonviolent offender early parole consideration because he has completed serving the full term for his primary, nonviolent offense.
In an opinion filed July 21, 2021, this court held that CDCR’s regulation was a reasonable interpretation of section 32 and denied the petition.

In November 2018, Appellant Alexander Montes pleaded guilty to leaving the scene of an accident (Veh. Code, § 20001, subd. (b)(2)) and admitted that he had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The trial court sentenced him to term of six years in prison and imposed various fines and fees, including a $129.75 criminal justice administration fee under Government Code section 29550.1.
On appeal, Montes argues, and the Attorney General concedes, that the portion of his $129.75 criminal justice administration fee that remains unpaid as of July 1, 2021 should be vacated due to recent legislative changes effectuated by Assembly Bill No. 1869 that rendered the fee uncollectible and unenforceable. “Assembly Bill 1869 abrogated the authority to impose and collect 23 different administrative fees, including, as relevant here, . . . the criminal justice administration fee.” (People v. Greeley (2021) 70 Cal.App.5th 609, 625.)

In 2003, the federal Drug Enforcement Agency (DEA) began investigating a drug trafficking operation (DTO) headed by Jose Vargas Alvarez. Defendant Alejandro Ramirez was part of the DTO, which transported and sold large quantities of cocaine and methamphetamine throughout the San Francisco Bay Area as well as southern California.
Following a trial, a jury convicted Ramirez of multiple drug related offenses, as well as offenses related to the kidnapping of a third party whom Vargas Alvarez suspected was involved in the theft of $2 million and drugs from one of the operation’s “stash” houses. The trial court sentenced Ramirez to a term of life in prison without parole, consecutive to 25 years to life, consecutive to 33 years eight months.
On appeal, Ramirez challenges the sufficiency of the evidence to support his convictions for: (1) conspiracy to commit murder (counts 4, 5); (2) the possession charges (counts 10 12, 14 16, & 28);

Ngan Ha Nguyen appeals from a judgment dismissing his case after defendants’ defaults were taken. The court’s order dismissing the case incorrectly stated Nguyen had been given three opportunities to submit written evidence proving-up damages; in fact, he had only been given two. The dismissal order came three days after a minute order was issued assuring Nguyen he would be notified if the court had any further requirements for entry of the judgment he sought.
This sequence of events is unfortunate because “to perform its high function in the best way, ‘justice must satisfy the appearance of justice.’” (In re Murchison (1955) 349 U.S. 133, 136.) In this case, while the court led Nguyen to believe its policy was to provide litigants with notice of any deficiencies in a default prove-up package, and a meaningful opportunity to cure the deficiency, it did not adhere to that policy.

Juan Jose Perez-Mora appeals from the judgment after a jury convicted him of two counts of continuous sexual abuse of a child under the age of 14 years, based on evidence he molested two young girls, B.R. (count 1) and A.R. (count 2). The trial court imposed consecutive terms of 15 years to life on each count under Penal Code section 667.61 (“One Strike law”) based on the jury’s true findings on multiple victim allegations. On appeal, Perez-Mora contends: (1) the trial court abused its discretion by excluding evidence of B.R.’s mental illness; (2) his trial counsel rendered ineffective assistance by failing to object to improper testimony by the prosecution’s expert on child sexual abuse accommodation syndrome (CSAAS) concerning the statistical rates of fabricated child sexual abuse claims; (3) the cumulative effect of these errors deprived him of a fair trial; (4) his life sentence under the One Strike law violated ex post facto guarantees;

Dr. Christina Schwindt lives in a Newport Beach community (the Bluffs) governed by a Homeowners Association (HOA). Schwindt’s next door neighbors, Ruhksana and Akbar Omar, built a room addition onto their home. The HOA’s Board of Directors (the Board) approved the room addition over Schwindt’s objection.
Schwindt sued the Omars alleging the room addition violated the Bluffs’ Covenants, Conditions, and Restrictions (CC&Rs). Schwindt alleged the addition was built in a prohibited patio area and it unreasonably interfered with her view. In an earlier bench trial, the court issued a mandatory injunction ordering the Omars to demolish their room addition and return their home to its original state. The Omars appealed.
This court reversed and remanded because the trial court’s statement of decision failed to address whether the room addition was built in a prohibited patio area and whether the court found the Board’s approval to be clearly arbitrary and capricious.