CA Unpub Decisions

MC Painting appeals from an order denying its petition to compel arbitration of a Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) action brought by a former employee, Lauro Sanchez. In denying the petition, the trial court followed Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian), which held that a worker’s right to pursue a representative PAGA action cannot be waived and that this state law rule is not preempted by the Federal Arbitration Act (FAA).
On appeal, MC Painting contends Iskanian is no longer controlling because it has been “overruled” by the United States Supreme Court in Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612 (Epic Systems).

In this marriage dissolution action involving Terence and Candy Bonner, Terence appeals from (1) the trial court’s August 7, 2020 judgment on reserved issues, which divided the parties’ community property and awarded sanctions under Family Code section 271; and (2) the trial court’s September 22, 2020 rulings on Terence’s postjudgment motions for a new trial and to set aside and vacate the judgment.
Terence raises numerous issues, many of which we reject either because Terence’s arguments are not meritorious or because Terence has failed to sufficiently develop his arguments and provide the necessary citations to the record and to legal authority.
However, as we will explain, Terence has identified three issues which require that this matter be remanded to the trial court.

Defendant Thomas Wayne Alexander pled guilty to oral copulation or sexual penetration of a child 10 years old or younger in exchange for a sentence of 15 years to life and dismissal of several other sexual abuse charges and special allegations. The trial court accepted the plea and sentenced defendant accordingly. The trial court, however, reserved jurisdiction over restitution, fines, and fees.
Following a hearing, the trial court ordered defendant to pay $150,000 in direct victim restitution. Defendant appeals the victim restitution order. He asserts the trial court violated his constitutional right under the United States Constitution to a jury determination of the facts and his right to a jury trial under article I, section 16 of the California Constitution.

Appointed counsel for defendant James Charles Walling, Sr., filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We affirm the judgment as modified to vacate a fee.

This case concerns use of a roadway that crosses property owned by Holly Kraemer to access parcels owned by the DeMartinis. After judgment was entered in Holly’s favor, Holly entered into a stipulation (the Stipulation) with Michael, Renate, James, and Ruth DeMartini providing, among other things, that an application to modify the judgment could be filed with the trial court if no appeal was filed. The trial court issued postjudgment orders consistent with the Stipulation. But after Michael and Renate filed a notice of appeal, Holly moved to rescind the Stipulation and to set aside the postjudgment orders. The trial court granted Holly’s motion as to Michael and Renate because they had appealed, but denied it as to James and Ruth because they did not appeal.
Holly now contends the appeal by Michael and Renate resulted in a complete failure of consideration for the Stipulation, entitling Holly to rescind her agreement even if James and Ruth did not appeal.

The six-year-old victim reported that defendant Kevin Bailey, her mother’s boyfriend, touched her inappropriately. At his first trial, defendant was charged with three counts of violation of Penal Code section 288, subdivision (b)(1) (statutory section citations that follow are to the Penal Code unless otherwise stated). The acts charged were: count one, “fingers to vagina in living room”; count two, “finger inside vagina in living room”; and count three, “grabbed her hand and made her rub his penis.” The jury at defendant’s first trial found him not guilty on count two and hung on counts one and three. At his second trial, defendant was charged with two counts, corresponding to counts one and three from the first trial. A jury found defendant guilty on both counts.
Prior to sentencing, defendant moved for a new trial based on three alleged instances of juror misconduct and moved for a continuance to investigate further.

Ricardo Hernandez appeals from an order committing him to a state hospital after the trial court found he was a sexually violent predator (SVP) under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.; SVPA or the Act). The SVPA “allows the state to petition superior courts for the involuntary civil commitment of certain convicted sex offenders whose diagnosed mental disorders make them a significant danger to others and likely to reoffend after release from prison.” (Walker v. Superior Court (2021) 12 Cal.5th 177, 184, fn. omitted (Walker).) An SVP shall be committed to the custody of the State Department of State Hospitals for an indeterminate term. (§ 6604.)
Following a court trial, the trial court found that Hernandez was an SVP. On appeal, Hernandez argues no substantial evidence supported the finding that he posed a current risk of offending.

The juvenile court sustained a dependency petition pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), (d) and (j), alleging Danielle W. and Juwan W., parents of now-five-year-old Jordynn W. and now-one-year-old M.W., had engaged in incidents of domestic violence in the children’s presence and were unable to provide proper care for the children due to their substance abuse and Danielle’s mental instability. The sustained petition also alleged Juwan had sexually abused Jordynn.
On appeal from the jurisdiction findings and disposition order removing the children from Danielle and Juwan’s custody, Danielle argues the grounding of dependency jurisdiction in part on the couple’s history of domestic violence was error.

This is a defamation action related to a workers’ compensation case. Plaintiff and appellant Andrew John Miles (plaintiff) is a chiropractor who treated an injured worker. Defendants and respondents are California Insurance Guarantee Association (CIGA) and Sedgwick Claims Management Services, Inc. (Sedgwick) (collectively, defendants), the workers’ compensation insurer and third-party claims administrator, respectively. Plaintiff sued CIGA and Sedgwick for defamation after Sedgwick sent two letters to the injured worker (as well as counsel for the worker and for CIGA) falsely stating that plaintiff had been indicted for fraud or misuse of Medicare, Medi-Cal, or the workers’ compensation system.
Defendants admitted the statements about plaintiff’s indictment were false but asserted the statements were privileged.

During boarding, airline passenger Eric Lopez (Lopez) refused to comply with preflight safety protocols for stowing baggage or to disembark voluntarily. Police were called, and all other passengers began to disembark. Another passenger, Trenton Scott Pickett-Evans (Pickett-Evans), approached and assaulted Lopez, causing injury to passenger Miguel Rodriguez (Rodriguez), who then sued the airline for negligence. The trial court granted the airline summary judgment, finding the airline owed no duty to protect Rodriguez from Pickett-Evans’s unforeseeable assault. We agree and affirm.

A jury convicted Cedrick Johnson and a codefendant of first degree murder and attempted murder. Johnson filed a petition for resentencing under Penal Code section 1170.95 and requested appointment of counsel. Without appointing counsel, the trial court denied the petition because Johnson “was not convicted of murder pursuant to the felony murder rule nor the natural and probable consequence doctrine.” The trial court erred in denying the petition before appointing counsel, but the error was harmless because the record of conviction establishes Johnson is ineligible for relief as a matter of law. We affirm. Undesignated statutory citations are to the Penal Code.

In 2010, defendant Gilbert Davila and his two codefendants assaulted two men, for which they were each convicted of two counts of attempted premeditated murder. The evidence and verdicts indicated defendant and one codefendant personally assaulted one victim, while the other codefendant personally assaulted the second victim. In 2013, we affirmed the convictions, rejecting the defendants’ claim of insufficient evidence. Specifically, with respect to the victim that each defendant did not personally assault, we held the evidence was sufficient to uphold the convictions on a theory of aiding and abetting under the natural and probable consequences doctrine. (People v. Davila (May 3, 2013, B239117) [nonpub. opn.] [2013 WL 1874740, pp. *5-*6].)
In 2019, defendant filed a petition for resentencing under Penal Code section 1170.95 (section 1170.95).

Plaintiff Emily V. (Emily) appeals from a February 5, 2021 order granting specially-appearing defendant Team Health, LLC (Team Health)’s motion to quash service of summons and complaint for lack of personal jurisdiction. As the notice of appeal was filed more than 60 days after the superior court clerk served a filed-endorsed copy of the order, we lack jurisdiction to review the order and the appeal must be dismissed.

Irenee Paule filed the underlying lawsuit against parties who allegedly deprived her of her contractual right to purchase commercial property in San Lorenzo (the property). In her complaint, Paule alleged causes of action against Asram Properties, LLC, the current owner of the property, for imposition of a constructive trust and civil conspiracy. Asram filed a motion to strike these causes of action pursuant to Code of Civil Procedure section 436 governing motions to strike. (Undesignated statutory references are to the Code of Civil Procedure.) The trial court granted Asram’s motion on the ground that the parties executed a stipulation that obligates Paule to dismiss her claims against Asram.
We will reverse the judgment for two related reasons. First, section 436 does not authorize striking an entire cause of action on a non-procedural ground, and second Asram failed to demonstrate that Paule’s claims are barred as a matter of law.