CA Unpub Decisions

Clifton Payne, Sr. (Clifton Sr.) had three children: appellant Cynthia Janni; Deborah Payne; and Clifton Payne, Jr. (Clifton Jr.). Clifton Sr. executed trust amendments that eventually disinherited Cynthia and Clifton Jr., and left the trust’s income to Deborah until the year 2037, at which time the trust residue would be distributed to Clifton Sr.’s longtime friend, Lorelai Howard. After Clifton Sr. died, and Deborah and Clifton Jr. died about one year later, Cynthia (as Deborah’s sole intestate heir) and Howard made competing claims of entitlement to the trust estate. The estate’s trustee, respondent Gloria Collins (Trustee), filed a petition seeking instruction from the probate court on how to resolve the competing claims. The probate court ruled that Clifton Sr.’s “clear . . . inten[t]” was for Howard to receive the entire trust estate immediately upon Deborah’s death, rather than waiting until 2037.

In 2005, a jury convicted Myron Thomas of second degree murder
(Pen. Code, § 187, subd. (a); count 1), assault with a deadly weapon
(§ 245, subd. (a)(3); counts 2, 3 and 4), and discharging a weapon from a motor vehicle (§ 12034, subd. (c); count 5). As to count 1, the jury found true allegations that Thomas intentionally and personally discharged a firearm (an assault weapon) within the meaning of section 12022.53, subdivisions (c) and (d) and personally used an assault weapon within the meaning of section 12022.5 subdivision (b). The jury found weapons allegations to be true with respect to the remaining counts. The court sentenced Thomas to an indeterminate term of 65 years to life (15 years to life on count 1 and 25 years to life each on the section 12022.53, subdivision (c) enhancements on counts 1 and 5), plus a determinate term of 23 years four months.

In this case, the appellant pleaded guilty to four murders, four attempted murders, and numerous other violent crimes. He was sentenced to four life without parole terms plus 56 years to life plus 87 years in prison. This appeal, however, is about a $154 fee, which has been repealed by the Legislature. The parties agree the fee must be vacated. We will order the judgment modified and otherwise affirm.

Brigitte Yvon’s dog, Davie, was severely burned during or soon after undergoing routine surgery. Yvon settled the potential veterinary malpractice claim against Dr. James Theodore Burghardt, Jr. and his corporate practice, Companion Pet Care, Inc. (collectively, Burghardt). This case erupted later after Yvon posted a very uncomplimentary Yelp review about Burghardt and the incident. Burghardt responded by suing Yvon for breach of a confidentiality provision in the settlement agreement (Agreement) as well as defamation and related causes of action (the Complaint). Yvon’s attorneys countered with an anti-SLAPP motion.
Yvon appeals from an order denying that motion. Burghardt concedes that all his claims arise from Yvon’s protected activity. The only issue is whether they have minimal merit. On independent review, we conclude they do not. Accordingly, we reverse with directions to enter judgment in her favor.

Defendant Stephanie Ann Smart pled no contest to assault with a deadly weapon resulting in great bodily injury, assault with a deadly weapon, and threatening to commit a crime resulting in death while on bail. The trial court sentenced defendant to five years and eight months in prison. Defendant appeals her sentence, asserting the trial court improperly considered her lack of remorse as an aggravating circumstance, and remand for resentencing is appropriate because the error was prejudicial.
In an unpublished opinion, we concluded defendant forfeited the argument and we accordingly affirmed the judgment. (People v. Smart (Oct. 5, 2021, C093192) [nonpub. opn.].) Our Supreme Court granted review and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 567 (Stats. 2021, ch. 731), which was signed into law three days after we filed our unpublished opinion.

This appeal arises from a soured romantic relationship between Michael Doran and Donna O’Connor-Rose, the mother of Doran’s child. The relationship ended in an unlawful detainer action evicting Doran from the home in which he and O’Connor-Rose lived and a domestic violence restraining order restraining Doran from being present at the home. Doran thereafter sued O’Connor-Rose for: (1) specific performance/breach of express contract; (2) constructive trust based on breach of express contract; (3) constructive trust based on breach of implied contract; (4) declaratory relief; (5) fraud and deceit; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) partition; and (9) injunction. O’Connor-Rose, in return, filed a cross-complaint against Doran for: (1) trespass to land; (2) ejectment; (3) unjust enrichment; and (4) declaratory relief.

Defendants Delwuan Orlando Scott and Malik Lequan Watson appeal from the judgment following their convictions for attempted murder, three counts of shooting at an occupied vehicle or inhabited dwelling, and two gang-related offenses. Scott also was convicted of evasion of a peace officer.
Defendants raise the following arguments on appeal: (1) Scott’s counsel was ineffective for failing to excuse from the jury a woman Scott claims was his high school guidance counselor, and the trial court erred by not inquiring further when Scott brought this to the court’s attention; (2) the trial court failed to instruct the jury to view the statements of defendants’ accomplice with caution; (3) the evidence supporting the gang findings was inadmissible hearsay; (4) the trial court incorrectly believed it lacked discretion under the “Three Strikes” law to impose Scott’s sentences concurrently;

Jose G. (Father) appeals an order terminating parental rights. (Welf. & Inst. Code, § 366.26.) He contends that the court and Los Angeles County Department of Children and Family Services (DCFS) did not conduct an adequate inquiry under the Indian Child Welfare Act (ICWA). (§ 224 et seq.; 25 U.S.C. § 1901 et seq.) Father and Mother denied Indian heritage and never, in three years, told anyone about Indian relatives though they lived with their parents and could readily inquire about their ancestry. Neither DCFS nor the court had reason to believe the children are Indian. Father has not shown prejudice from DCFS’s failure to interview extended family members. We affirm.

Bernard Brown, Jr. appeals the judgment following resentencing on remittitur. We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. Appellant filed his own supplemental brief, in propria persona.

Luis Francisco Meza appeals the denial of his motion to vacate his conviction pursuant to Penal Code section 1473.7.
In 2001, appellant entered into a plea bargain in which he pleaded guilty to one count of second degree robbery. On February 4, 2021, appellant filed a motion to vacate his conviction pursuant to section 1473.7. The trial court denied the motion based on its own credibility and factual findings following its review of the court file and a hearing at which appellant testified and the court heard argument. Appellant contends that because he established by a preponderance of the evidence that he lacked a meaningful understanding of the adverse immigration consequences of his plea, the trial court erred in denying his section 1473.7 motion to vacate his conviction. We disagree and affirm.

Defendants and respondents purchased at a trustee’s sale real property that plaintiff and appellant Jose Solano previously owned along with his wife (who is not a party to the lawsuit). By means of this lawsuit, Solano, in propria persona, sought to regain title to the property and requested monetary damages. The trial court dismissed Solano’s lawsuit following its sustaining of respondents’ demurrer to some of the causes of action in the operative complaint and granting of a motion for judgment on the pleadings on the remaining causes of action.
Solano, in propria persona, appeals from the judgment of dismissal. On appeal, Solano fails to identify the allegations in his operative complaint that he claims were sufficient to state a cause of action. As set forth below, it was his burden on appeal to do so. His failure to identify allegations in the operative complaint to support each element of his causes of action is fatal to his appeal. Accordingly, we affirm the judgment.

Appellant Cycad Management LLC moved to compel arbitration of respondent Jose Merced Nunez’s lawsuit. (Code Civ. Proc., § 1281.2.) In support of the motion, Cycad offered a “Mutual Arbitration Agreement” (Agreement). The trial court found the Agreement unconscionable and refused to enforce it.
Substantial evidence supports factual findings that the Agreement is adhesive because it was presented to Nunez as a nonnegotiable condition of his employment. It is procedurally unconscionable because it was given to Nunez in English, which he cannot read, without adequate explanation or a fee schedule. It is substantively unconscionable because it allows the arbitrator to shift attorney fees and costs onto Nunez and drastically limits his ability to conduct discovery. We affirm the denial of Cycad’s motion to compel arbitration.

Tung Ming and Darryl Leander Hicks, Jr. appeal the judgments entered following a jury trial in which both were convicted of vehicular manslaughter (count 1; Pen. Code, § 192, subd. (c)(2)) and reckless driving on a highway causing specified injury (count 2; Veh. Code, § 23103, subd. (a)). As to count 1, the jury found true the allegation that Hicks fled the scene of the crime (Veh. Code, § 20001, subd. (c)), and as to count 2, the jury found true two allegations that in committing the offense both defendants caused specified injury to Jesse E. Esphorst and Jesse F. Esphorst pursuant to Vehicle Code section 23105. In addition, Hicks was convicted of two counts of hit-and-run driving resulting in death or serious injury to another person (counts 3 & 4; Veh. Code, § 20001, subd. (b)(2) & (b)(1)), hit-and-run driving resulting in property damage (count 5; Veh. Code, § 20002, subd. (a)), and one misdemeanor count of driving when privilege suspended or revoked.

Plaintiff and appellant Jonathan Rosen (Rosen) sued Edward Lear (Lear) and his law firm, Century Law Group (CLG), for legal malpractice. After a bench trial, the trial court entered judgment in favor of Lear and CLG on the ground that Rosen’s complaint was barred by the applicable one-year statute of limitations. (See Code Civ. Proc., § 340.6, subd. (a).)
Rosen’s sole contention on appeal is that his action was timely because the statute of limitations was tolled until Lear formally withdrew as his attorney of record. For the reasons discussed below, we reject this contention and affirm.