CA Unpub Decisions

On the morning of January 29, 2008, a simmering disagreement between defendant Roger Troy Broyles and Richard Koenig exploded into violence when defendant attacked Koenig and put him into a two-month coma with multiple skull and rib fractures and severe internal injuries. As a result, defendant was charged with, and a jury convicted him of five crimes: assault by means of force likely to cause great bodily injury and involving the personal infliction of great bodily injury resulting in coma (Pen. Code, §§ 245, subd. (a)(1)), 12022.7, subds. (a), (b); subsequent statutory references are to the Penal Code); battery involving the infliction of serious bodily injury (§ 243, subd. (d)); torture (§ 206); mayhem involving the personal infliction of great bodily injury resulting in coma (§§ 203, 12022.7, subds. (a) & (b)); and felony vandalism. (§ 594, subd. (b)(1).) The jury also found true an allegation that defendant had suffered a prior felony conviction. (§§ 667, 1170.12.) The trial court sentenced to state prison for an aggregate term of life plus 52 years.
On this timely appeal, defendant presents a single contention: he could not properly be convicted on the assault and battery charges because they are lesser included offenses of torture. We reject the contention, and we affirm.

Defendant Ismael Contreras and Ronnie Padilla were jointly charged in the second amended information with attempted premeditated murder and assault with a deadly weapon. Each count had allegations that each defendant personally inflicted great bodily harm and committed the offense to promote a criminal street gang. Padilla alone was charged with eleven additional gun- and gang-related crimes. A jury convicted defendant—and Padilla—on the two jointly-charged counts, for which defendant was sentenced to an aggregate term of 18 years to life. (Padilla was convicted as charged on 11 of the charges against him, acquitted on one, and found guilty of a lesser included offense on the last.)
After the first consolidated information was filed, which had the two joint charges and only ten separate charges against Padilla, defendant moved to sever trial on the joint charges. The obvious ground for the motion was that the two jointly-charged offenses were alleged to have occurred on October 3, 2006, but the remaining counts against Padilla involved offenses for November 12, 2005, December 31, 2005, and March 26, 2008. Immediately after granting the prosecution’s motion to amend the information with the final charge against Padilla, the trial court denied defendant’s severance motion, as follows:

Plaintiff Brandon Abbey filed two lawsuits against defendant Fortune Drive Associates, LLC (Fortune). The first lawsuit sought damages in connection with Abbey’s business dealings with Fortune. The second sought to enjoin an arbitration commenced by Fortune regarding similar issues. The trial court granted the requested relief in the second lawsuit, staying the arbitration. Following entry of a declaratory judgment for Abbey in the second lawsuit, and before the conclusion of the first lawsuit, Abbey was awarded attorney fees under Civil Code section 1717 (section 1717). Fortune contends the trial court erred in awarding attorney fees, arguing such an award is available only to the prevailing party in the underlying contractual dispute. We agree and reverse the award.

Paul Bellazain (appellant) appeals from a final judgment of conviction of numerous felonies following a jury trial. Appellant contends the trial court erred in denying his motion for a mistrial. We reject appellant’s contention and affirm.

The minor, H.V., appeals from the juvenile court’s May 1, 2013 dispositional order declaring him a ward of the court and committing him to the county juvenile ranch following the minor’s admissions that he committed conspiracy to commit robbery (Pen. Code, § 211)[1] and attempted robbery (§§ 664, 211).
On appeal, the minor challenges a condition of probation that prohibits him from contact with the victim or the victim’s family and requires him to stay at least 100 yards away from the victim and the victim’s residence, vehicle, school, and placement of employment. For reasons that we will explain, we will modify the probation condition to include an explicit knowledge requirement. As so modified, we will affirm the juvenile court’s dispositional order.

This litigation arises out of a real estate transaction in which Bruce Elworthy and Anne Marshall (husband and wife, jointly Buyers) purchased a home for $3 million from Stephan (Steve) and Barbara Spiva (Spivas or Sellers). After they discovered several defects with the home, many of which had to do with windows and doors that leaked, Buyers sued Sellers, Sellers’ real estate agents, and certain parties responsible for the construction of the home. After settling with some defendants and dismissing others, the case was tried to the court on Buyers’ claims for intentional misrepresentation, negligent misrepresentation, and rescission against Sellers. The court found for Buyers on their claim for negligent misrepresentation about the doors that leaked; it awarded Buyers $60,000 in damages.
In this appeal, Buyers challenge the trial court’s ruling that rescission of the house purchase––as opposed to a $60,000 damages award––was not available to them as a remedy. Buyers contend the court erred when it refused to grant their request for rescission, abused its discretion when it found that Buyers were guilty of laches, and erred when it failed to consider that Sellers engaged in “more than mere ‘negligent misrepresentation.’ ” We conclude that the court properly found that rescission was not available to Buyers because they had lost the property to foreclosure. Accordingly, we will affirm the judgment.

In July 2011, defendant Francisco Kamakani, pursuant to a negotiated disposition, pleaded guilty to attempted premeditated murder (Pen. Code, §§ 187, 664).[1] He also admitted allegations of premeditation (§ 189); that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); and that he was 16 years of age or older when the offense was committed within the meaning of Welfare and Institutions Code section 707, subdivision (d) and that the offense was one enumerated in subdivision (b) of that statute. Defendant was promised in exchange for this plea that the seven remaining felony counts in the information (including premeditated murder and four additional counts of attempted premeditated murder) would be dismissed, and that he would receive a prison term of 15 years to life. The court--after advising defendant of the constitutional rights he was waiving and confirming that he was voluntarily waiving those rights in pleading guilty under the agreement--advised defendant that he would be on parole for a period of three years after his release from prison. At the sentencing hearing two and one-half months later, defendant, although represented by counsel, personally requested leave to withdraw his guilty plea; he claimed, inter alia, that he had been pressured by his family into agreeing to the plea bargain. The court denied the request. It then sentenced him to prison for 15 years to life on the one attempted premeditated murder conviction. It indicated that defendant, upon his release, would be on parole for a term of seven years to life.
Defendant asserts two claims of error on appeal. First, he argues that a three-year parole period was promised to him when he entered his guilty plea, but the court could not legally impose it and was required to impose a more lengthy parole term. Therefore (he contends), the court was required to give him a chance to withdraw his plea before the imposition of this more severe sentence. And, defendant argues, to the extent that he may have forfeited this challenge because it was not raised below, he was deprived of effective assistance of counsel. Second, defendant argues that the court erred in imposing a $129.75 criminal justice administration fee (booking fee), pursuant to Government Code section 29550.1, without first determining that he had the ability to pay the fee. He asserts that this statute should be read as impliedly requiring an ability-to-pay determination, or, alternatively, the absence of such a requirement constituted a violation of his constitutional right to equal protection under the law.

Brockstar Ltd., Brockstar Groups of Companies, Brockstar Financial Services, Inc., and Brian N. Willis (collectively, Brockstar) appeal from a judgment on breach of contract and fraud causes of action in favor of GoMirror, LLC, for falsely inducing GoMirror to provide successively greater sums of earnest money and then reneging on its promise to obtain financing for GoMirror to bring its novel women’s cosmetics accessory to market. Brockstar contends GoMirror, a Texas corporation, lacked capacity to sue because it failed to register as a company conducting business in California. Brockstar also asserts “[p]laintiff’s claim for lost profits was too speculative to receive such an award as a matter of law” and that “[t]he amount of lost profits awarded was not supported by substantial evidence” because “[t]here is simply no evidentiary support for how the court made [its] determination.” As we explain, Brockstar’s challenges are without merit, and we therefore we affirm the judgment.

Plaintiffs Sandra Starr and Richard Starr appeal from a judgment entered after the court sustained without leave to amend the demurrer of defendant OneWest Bank, FSB to the second amended complaint. Although the allegations are framed in a variety of causes of action, the complaint essentially asserts defendant improperly began and maintained non-judicial foreclosure proceedings after plaintiffs defaulted on a note secured by a deed of trust on their residence and failed to properly evaluate their request for refinance of the loan.
On appeal they contend the court erred in concluding their claims were primarily based on violation of the Home Affordable Modification Program (HAMP[1]), which does not allow a private right of action, and that instead each cause of action states sufficient facts to constitute a claim. They primarily seek pain and suffering damages due to the threat of losing their home. They have not sufficiently pleaded any of the causes of action nor will they be able to do so. Thus we affirm.

Martin Pemstein appeals from the judgment he obtained against his brother Harold Pemstein[1] in this action for damages relating to rent defaults on leases for two commercial buildings. He challenges the amount of damages awarded. We find no error and affirm.

In this appeal, Martin Pemstein contends the trial court erred in failing to tax costs as outlined in his unopposed motion. He faults the trial court for requesting additional briefing, considering argument from the prevailing party Harold Pemstein, and awarding Harold[1] costs he was not entitled to receive. We conclude Martin’s arguments lack merit, but because the trial court misinterpreted the scope of the costs award, the order must be reversed and remanded.

Appellant Linda C. Harrison (wife) appeals from a judgment of dissolution of her marriage to Kevin F. Harrison (husband). She raises only one issue, that there is insufficient evidence to support the date of separation selected by the trial court. Based on wife’s failure to fully set out all the material facts as to the date of separation and the presumption the court’s decision was supported by substantial evidence, we affirm.

“Debra requests her reasonable appellate attorney fees and costs under Welfare and Institutions Code section 15657.5, subdivision (a). As we noted in the concurrently filed companion appeal Debra R. Kalfin v. Judith A. Kalfin (Oct. 15, 2013, G047275) [nonpub. opn.], as prevailing party Debra is entitled to an award of costs and attorney fees incurred on appeal, which includes the costs and fees incurred in defending the judgment and the attorney fees award, in an amount to be determined by the trial court. (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499 [‘statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise’]; Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388 [party who successfully defends an award of attorney fees is entitled to appellate attorney fees as well].)”

This is an appeal following judgment after the court sustained a demurrer and granted a motion for judgment on the pleadings by Ronald and Vicky Nelson (collectively the Nelsons) on a complaint filed by Michael Coats and Jeremy Coats (collectively the plaintiffs).[1] The complaint alleged claims against the Nelsons for quiet title, fraud, and other causes of action relating to a piece of real property owned by a trust. The Nelsons, joining with two institutional defendants, successfully demurred to all of the causes of action except for quiet title on the grounds that plaintiffs were not real parties in interest, but beneficiaries of the trust. The Nelsons then brought a motion for judgment on the pleadings on the same grounds, which the court granted. We agree with the Nelsons that the trial court properly sustained the demurrer and granted the motion for judgment on the pleadings, and therefore affirm.