CA Unpub Decisions

In this breach of contract case, we reverse the $2.8 million verdict entered in favor of the plaintiff. The record demonstrates that jurors, who believed the plaintiff was not entitled to any damages, compromised their view of the evidence in order to reach a verdict rather than because they agreed the plaintiff established the right to a substantial recovery. Our conclusion is based on the responses the trial court gave the jury to questions they had during the course of deliberation, affidavits of jurors with respect to what took place during deliberation, and the fact that the amount awarded was substantially less than the principal damages theory advanced by the plaintiff at trial.
We note the plaintiff's theories of both liability and damages were based in substantial part on his contention that the defendant failed to properly compensate him for sums he claimed were due on an earlier agreement, which itself was contingent on the outcome of contracting decisions made by the governing boards of local municipalities. Arguably, these theories of liability and damages are barred by public policy. Because this defense was not raised below and because there may be circumstances which relieve plaintiff from it in whole or in part, we decline to resolve this issue at this juncture. Rather, on remand, the defendant may raise public policy as a defense to the plaintiff's claims, and the plaintiff may fully contest the validity and application of the defense.

Defendant Gregory Scott Demontmollin appeals from an order after judgment denying his motion to correct the abstract of judgment. This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).

L.L. (mother) appeals from the dependency court’s order made at a six-month review hearing under Welfare and Institutions Code section 366.21, subdivision (e)[1] denying her request that her 13-year-old son, J.V., a dependent of the juvenile court, be returned to her custody. Mother contends substantial evidence does not support the finding that returning J.V. to her custody created a substantial risk of detriment to the child. We affirm.

Kristal Marie Phillips appeals an order revoking probation in case No. MA056166-01, and a judgment after conviction in case No. MA057013-01, after she waived her constitutional rights, admitted violating probation, and pleaded nolo contendere to second degree burglary. (Pen. Code, §§ 459, 460)[1] Phillips did not obtain a certificate of probable cause for this appeal.

Harvey B. (Father) appeals from an August 1, 2012 juvenile court order denying Father’s Welfare and Institutions Code section 388 petition.[1] Father contends that the evidence was insufficient to support the court’s July 2, 2012 order setting a section 366.26 hearing as to minor Lucas S., born in 2005. Father also contends that he presented prima facie evidence to support an evidentiary hearing on his modification petition filed pursuant to section 388 and therefore the juvenile court’s summary denial of his petition on August 1, 2012 was an abuse of discretion. The Department of Children and Family Services (DCFS) filed a motion for dismissal of Father’s purported appeal challenging orders and findings from the July 2, 2012 hearing. DCFS also filed a motion for judicial notice of our prior opinion in In re Lucas S. (Sept. 22, 2011, B229906) [nonpub. opn.] (Lucas I) and the record regarding that matter pursuant to Evidence Code sections 452 and 459. Father filed a “motion to strike [his] opposition to [DCFS’s] partial motion to dismiss and permission to file an amended opposition to [DCFS’s] partial motion to dismiss” and a motion to take judicial notice of an unrelated opinion in which our Supreme Court granted review and later transferred the matter to us with directions to vacate our decision and reconsider the cause. Taryn S. (Mother) is not a party this appeal.
We grant DCFS’s motion for dismissal of Father’s purported appeal challenging orders and findings from the July 2, 2012 hearing because Father’s notice of appeal states only that Father appeals from “[d]enial of 388 petition on August 1, 2012.” We grant DCFS’s motion for judicial notice of our prior opinion, Lucas I, supra, B229906, and the record regarding that matter pursuant to Evidence Code sections 452 and 459. We grant Father’s motion to strike his opposition and file an amended opposition. We deny Father’s motion to take judicial notice of the superseded, unrelated opinion in which our Supreme Court granted review and later transferred the matter to us with directions to vacate our decision and reconsider the cause because it cannot be cited as authority.
Because Father did not allege a prima facie showing of changed circumstances and that the proposed change would promote the best interests of Lucas, we conclude that the juvenile court did not abuse its discretion when it summarily denied Father’s section 388 petition for modification on August 1, 2012. We affirm the order of the court.

Mother, S.J. (Mother), appeals from a dependency court order declaring her minor son, A.F., a dependent of the court under Welfare and Institutions Code section 300 (section 300), subdivision (b). Mother contends there is no substantial evidence that A.F. is at substantial risk of suffering serious physical harm such that dependency jurisdiction is appropriate under section 300, subdivision (b). We agree and reverse the order finding dependency jurisdiction over A.F. on that ground.
The Los Angeles County Department of Children and Family Services (DCFS) cross-appeals from the judgment, contending that the dependency court erred in failing to find jurisdiction pursuant to section 300, subdivision (c), based on severe emotional damage to A.F. Because the evidence below with respect to emotional abuse was contradictory, we affirm the order dismissing the allegation under section 300, subdivision (c).

Appellant Michael Schmidt filed a petition to compel respondents, his former employer and his employer’s alleged affiliates, to arbitrate his overtime and other wage claims.[1] The trial court denied and dismissed Schmidt’s petition because (1) the evidence failed to show that all of the respondents were bound by the arbitration agreement, and (2) his delay in requesting arbitration constituted a waiver of the right to arbitration. In this appeal from the judgment (order of dismissal), we affirm.

Freddy N. Ochoa appeals from the judgment following his conviction by jury of misdemeanor battery, a lesser included offense of battery resulting in serious bodily injury. (Pen. Code, §§ 242, 243, subd. (d).)[1] The jury also acquitted him of assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(4).) The trial court sentenced him to 180 days in county jail. Appellant's sole contention on appeal is that the trial court erred by admitting prior crime evidence. We affirm.

Appellant Caviar Defazzio Mickens appeals from the judgment entered following his convictions by jury on two counts of corporal injury upon a cohabitant (Pen. Code, § 273.5, subd. (a); counts 1 & 7),[1] two counts of disobeying a domestic relations court order (§ 273.6, subd. (d); counts 3 & 8) with findings as to each of counts 3 and 8 that appellant’s conduct involved an act of violence or a credible threat of violence and he suffered a prior conviction for disobeying a domestic relations court order, count 4 – criminal threats (§ 422), and count 5 – brandishing a replica gun (§ 417.4). The court sentenced appellant to prison for 4 years 8 months. We modify the judgment and, as modified, affirm it with directions.

Robert Galindo Barrera (Barrera) and Richard Mariano Reyes (Reyes) challenge their first-degree murder convictions and sentences of 50 years to life. We affirm.

Plaintiff and appellant NAMA Holdings, LLC (NAMA) sought permission, pursuant to Civil Code section 1714.10 (section 1714.10), to file a complaint against defendant law firm, Dorsey & Whitney LLP (Dorsey), for accepting funds from a client against whom NAMA had a substantial judgment. NAMA alleged Dorsey was guilty of fraudulent transfer of funds and conversion. Dorsey filed opposition and also filed a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16). The trial court refused permission to file the complaint under section 1714.10, granted the anti-SLAPP motion, and sanctioned NAMA and/or its counsel (appellants Ronald P. Slates, P.C., Ronald P. Slates, J. Steven Bingman, and Johnny Kim) under Code of Civil Procedure section 128.7.
NAMA and its counsel appeal from the trial court’s orders. Because we conclude that NAMA’s complaint related to protected activity and NAMA failed to demonstrate a likelihood of prevailing on the merits, we affirm the order granting the anti-SLAPP motion and striking the complaint. That order being dispositive, we do not find it necessary to consider the order pursuant to section 1714.10. We reverse the order imposing sanctions, concluding that counsel for NAMA did not engage in egregious conduct justifying sanctions.

Defendant Martis Leonard Childs appeals from a judgment sentencing him to a prison term of 90 years to life after a jury found him guilty of first degree murder (Pen. Code,[1] § 187, subd. (a)) and attempted first degree murder (§§ 664/187, subd. (a)), and found to be true allegations that the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and that defendant personally discharged a handgun causing death and great bodily injury (§ 12022.53, subd. (d)). Defendant raises two issues on appeal. He contends: (1) the investigators employed impermissibly suggestive identification procedures with one of the witnesses, who was the only non-accomplice witness to identify defendant; and (2) the trial court improperly admitted dog scent identification evidence. We affirm the judgment.

Daniel Pantoja-Ramirez appeals from a judgment upon a jury verdict finding him guilty of permitting another to shoot a firearm from a vehicle, and obstructing or delaying a peace officer (Pen. Code, §§26100, subd. (b); 148, subd. (a)(1)). On appeal, defendant challenges the gang conditions of his probation. We modify the gang conditions, and otherwise affirm the judgment.

Edgar A. Reyes-Acostas appeals from a conviction of vehicle theft. He contends the trial court abused its discretion in admitting evidence of a prior misdemeanor vehicle theft conviction. We affirm.