CA Unpub Decisions

A demurrer is used to test the sufficiency of the factual allegations of the complaint to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The facts pled are assumed to be true and the only issue is whether they are legally sufficient to state a cause of action. “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Our standard of review is de novo: “Treating as true all material facts properly pleaded, we determine de novo whether the factual allegations of the complaint are adequate to state a cause of action under any legal theory, regardless of the title under which the factual basis for relief is stated. [Citation.]” (Burns v. Neiman Marcus Group, Inc. (2009) 173 Cal.App.4th 479, 486.)

On July 28, 2011, plaintiff Tom Conway filed his first amended complaint, alleging six causes of action based on his dealings with defendants in a series of real estate loan transactions.
On August 11, 2011, defendants filed a demurrer to the first amended complaint. On August 31, 2011, the trial court sustained the demurrer without leave to amend. After Conway’s motion for reconsideration was denied, Conway filed this appeal from the ensuing judgment.

This is an appeal from the sentence imposed on remand for resentencing following our opinion in People v. Lewis (Aug. 23, 2011, E051058) (nonpub. opn.) (Lewis I).
During the pendency of this appeal, the California Supreme Court issued its opinion in People v. Jones (2012) 54 Cal.4th 350 (Jones). Pursuant to that opinion, we conclude that Penal Code section 654[1] bars imposition of unstayed sentences on both count 1 and count 4, for possession of a firearm by a convicted felon and for receiving stolen property, consisting solely of the same firearm.
Also during the pendency of this appeal, the electorate amended the three strikes law by passing Proposition 36, the Three Strikes Reform Act of 2012, effective November 7, 2012. Defendant contends that the amendment to sections 667 and 1170.12, which would reduce his sentence from 25 years to life to a far lesser determinate term, applies to him under the doctrine of In re Estrada (1965) 63 Cal.2d 740 (Estrada), i.e., that an amendatory statute which reduces punishment applies in all cases not yet final on appeal, unless there is a clear indication that the enacting body did not so intend. As we discuss below, we agree.

According to the daughter and stepdaughter of defendant Ruben Dejesus Franco, he sexually molested each of them when they were under 14. He started by playing a “tickling game” with them; during this “game,” he would touch their breasts, buttocks, or pubic area. In the case of his stepdaughter, his conduct eventually escalated to oral copulation.
At trial, defendant admitted that he orally copulated his stepdaughter once, and she orally copulated him once. However, he claimed that she “enticed” him. He also claimed that the first incident took place in Mexico and the second took place after she had already turned 14. He claimed that, if he touched his own daughter’s breasts or pubic area at all, he did so only while trying to cover her up after her clothing became disarranged during the “tickling game.” Otherwise, he denied all the alleged sex acts.
After hearing testimony for three days, a jury took only one hour to find defendant guilty on seven counts of a nonforcible lewd act on a child under 14. (Pen. Code, § 288, subd. (a).) A multiple-victim allegation for purposes of the one strike law was found true. (Pen. Code, § 667.61, subd. (e)(5).) Defendant was sentenced to a total of 46 years to life, plus the usual fines and fees.

On May 3, 2006, respondent Julieta Trejo (Julieta) filed her petition for dissolution of her marriage to appellant Hugo Trejo (Hugo). The petition sought custody and visitation determinations for the couple’s two children, then ages 14 and 11. It also sought spousal support and the determination of rights to the community property.
A court trial commenced on April 9, 2009. Julieta was represented by attorney Fernando Bernheim. Hugo appeared, without an attorney. The issues presented were custody and visitation, child support, permanent spousal support, and division of community property.
Attorney Bernheim alleged Hugo had breached his fiduciary duties and asked the court to select an alternate valuation date for the real property. For the same reasons, he asked that Julieta be awarded 100 percent of Hugo’s pension plan. He also asked that Hugo pay attorney fees and costs of $8,000.

A jury found defendant and appellant, Joe C. Johnson (defendant), guilty of numerous crimes including second degree murder. At the conclusion of a five-day trial on defendant’s claim that he was legally insane at the time he committed the crimes, the jury was unable to reach a verdict and the trial court declared a mistrial. A second jury rejected his defense and found defendant sane. The trial court then sentenced defendant to serve a total term of 36 years four months to life in state prison.
Defendant contends in this appeal that the trial court committed prejudicial error when it failed to sua sponte instruct that if the jurors had a reasonable doubt about whether the crime was murder or involuntary manslaughter, they had to give defendant the benefit of the doubt and find him guilty of involuntary manslaughter. Defendant also contends that we must strike the Penal Code section 667, subdivision (a), sentence enhancement the trial court found true because the prosecutor did not amend the information to include that allegation until after the original jury was discharged. We agree with defendant’s second contention; therefore, we will strike that sentence enhancement and otherwise affirm the judgment.

This is an appeal by defendant and appellant Scott Andrew Hove, Sr. (defendant), challenging his sentence of 29 years to life in state prison, which the trial court imposed under the three strikes law after a jury found defendant guilty of petty theft with a prior theft conviction in violation of Penal Code section 666,[1] based on evidence that defendant stole gloves and a roll of wire, worth $20.94, from Home Depot. Defendant contends the trial court abused its discretion by denying his request to strike two of his three first degree burglary convictions, all prior serious and/or violent felony convictions within the meaning of the three strikes law. Defendant also claims that his sentence violates the state and federal constitutional prohibitions against cruel and/or unusual punishment. Finally, defendant challenges the jury’s guilty verdict on the ground that the presumption of prejudice arising from the misconduct of a juror was not rebutted in this case.

Plaintiffs and appellants Leslie Andrews and Holly Fallon (plaintiffs) appeal from a summary judgment in favor of defendant William Gillespie, M.D., in a lawsuit alleging the wrongful death of their 18-year-old son, Eric Andrews. The trial court denied plaintiffs’ request to continue the summary judgment motion because plaintiffs failed to specify what admissible evidence they expected to be able to obtain if the continuance were granted. The trial court granted the summary judgment motion because plaintiffs failed to produce admissible evidence showing the existence of triable issues of material fact concerning plaintiffs’ claims that the medical care Gillespie provided their son fell below the applicable standard of care.
We will affirm the judgment.

The trial court denied the motion on grounds that, “although defendant Holland has met his burden of showing that the causes of action arise, in part, out of his protected speech, [p]laintiff [and respondent] Cambridge has met his burden of showing that he has a probability of prevailing based on his showing that Holland made defamatory and unprivileged statements to Ms. Beckman and Mr. Duffey accusing plaintiff of a crime.” (Underscore omitted.)

Larry Glenn Mallory entered a negotiated plea of guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378). He also admitted having a prior conviction for selling a controlled substance. (Health & Saf. Code, § 11370.2, subd. (c).) Consistent with the terms of the plea agreement, the trial court sentenced Mallory to five years in local custody. Additionally, in exchange for his guilty plea and at the district attorney's request, the trial court dismissed another charge and seven other sentence enhancement allegations.

Erika Ortega pled guilty to one count of attempted arson of an inhabited structure (Pen. Code, §§ 664/451, subd. (b))[1] and two counts of felony child abuse (§ 273a, subd. (a)). The trial court sentenced Ortega to the midterm of four years on count 2 and imposed concurrent terms on the other counts. We affirm the judgment.

APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed in part, reversed in part, and remanded with directions.
Following a mistrial due to a deadlocked jury, a second jury found Abdulaziz Ahmed Sharif guilty of unlawfully taking or driving a vehicle. At the sentencing hearing on March 5, 2012, the court placed Sharif on three years of formal probation and suspended imposition of sentence for that period of time, but committed him to the custody of the San Diego County Sheriff's Department for 365 days. The court imposed a total of $1,264 in fines, fees, and assessments, including a restitution fine imposed under section Penal Code section 1202.4, subdivision (b) (hereafter § 1202.4(b); undesignated statutory references are to the Penal Code) in the amount of $240. The court also determined that Sharif, who was arrested on February 4, 2011, was entitled to a total of 594 days of credit for time served in local presentence custody, consisting of 396 days of credit for time actually served, plus 198 days of conduct credit under the former version of section 4019 in effect when Sharif committed his offense the day before he was arrested, and which allowed him to earn one day of conduct credit for every two days he actually served in local presentence custody.

Plaintiff and appellant Earnest A. Davis, in propria persona, appeals the defense summary judgment granted for defendants and respondents, the County of San Diego Air Pollution Control District, John Annicchiarico, Robert Kard and Tom Weeks (the County) in his action on employment discrimination theories under the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.; Code Civ. Proc., § 437c; all further statutory references are to the Code of Civ. Proc. unless noted.) After receiving opposition, including documents lodged by Davis, the trial court ruled that as a matter of law, the two prior administrative adjudications on claims arising out of the same circumstances, both resolved unfavorably to Davis at the administrative and judicial levels, barred these same FEHA-based claims. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61 (Johnson); Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477 (Castillo).)
On appeal, Davis argues that the trial court's grant of summary judgment was procedurally and substantively flawed, or that he was deprived of due process regarding the pursuit of additional allegations he now seeks to add to his previous claims (e.g., claims naming several individual coworkers, not an institutional defendant), and because he, a nonlawyer, was forced for economic reasons to represent himself. Davis further contends that he successfully identified triable issues of fact about discrimination, regarding inadequate representation by his previous retained counsel, who handled the prior litigation of the mandamus petitions, and who, when withdrawing as counsel, allegedly engaged in some kind of collusion with defense counsel and the trial courts that heard those matters.
Based on the inadequacies of Davis's briefing and record preparation, which failed to comply with basic principles of appellate practice, he has arguably forfeited any challenge to the summary judgment ruling. In any case, as a matter of law, this record discloses that the trial court correctly determined that the final orders, after unsuccessful appeals on the two prior administrative adjudications and related lawsuits, precluded these FEHA claims. (Davis v. Unemployment Insurance Appeals Board (Nov. 14, 2012, D060471) [nonpub. opn.] (No. D060471); Davis v. Civil Service Commission (Nov. 15, 2012, D060468) [nonpub. opn.] (No. D060468); together, our prior opinions.) All three of Davis's actions arose out of and were pursued on the same basic set of facts, and the trial court properly ruled, as a matter of law, that Davis's current complaint reframing those allegations lacks merit. We affirm the summary judgment.
I

R.J. Reynolds Tobacco Company (Reynolds) challenges trial court orders issued after remand in the last appeal in this matter, which award the People of the State of California $2,943,920.63 in contractual attorney fees as the prevailing parties in an action to enforce a consent decree and final judgment (Consent Decree) entered on a master settlement agreement (MSA). Reynolds contends the court erred in its prevailing party determination because the People did not achieve "greater relief" on the contract as required by Civil Code section 1717 (section 1717), subdivision (b)(1)). Alternatively, Reynolds contends the court erred by applying market rates for San Francisco Bay Area attorneys when determining the lodestar amount of fees, instead of local San Diego market rates, and by not further reducing the lodestar amount in consideration of the People's partial success. We affirm the orders.