CA Unpub Decisions

David Elias appeals from the trial court’s order granting respondent Krishna Gulaya’s motion to withdrawal as Elias’s attorney. Gulaya filed a motion to dismiss the appeal. As explained below, we conclude the trial court’s order is nonappealable and accordingly, we dismiss the appeal.

Cross-complainants, Yellow Dog Holdings, LLC, Douglas Pientock, and William Sonichsen (collectively, cross-complainants) appeal from judgment entered after the trial court sustained cross-defendant Ascentium Capital, LLC’s (Ascentium) demurrer to the cross-complaint. Cross-Complainants contend they properly stated a cause of action for declaratory relief, while Ascentium contends the case is moot, that cross- complainants lack standing, and that the trial court properly exercised its discretion to dismiss the cross-complaint. We conclude the trial court erred in dismissing cross- complainant Yellow Dog’s claims and reverse the judgment, but affirm the court’s rulings as to the remaining cross-complainants.

Defendants Equaltox, LLC, and its owner Sulaiman Masood appeal from a judgment and postjudgment award of attorney fees in favor of plaintiff Paola Borja, who sued defendants for unpaid commissions owed under a contract that contained a prevailing party attorney fees provision. The judgment adopted the factual findings of a medical billing referee appointed by the trial court and ordered Equaltox, LLC, but not Masood, to pay Borja damages. The postjudgment award of attorney fees was against Equaltox, LLC, only.
On appeal, defendants assert the trial court should have found Masood was a prevailing party, that the award to Borja should be reversed, and that insufficient evidence supports the damages award. We affirm the judgment and postjudgment order.

Curtis W. Carter, representing himself, appeals from an August 2020 order renewing a domestic violence restraining order. Respondent Jennifer Carrington has moved to dismiss the appeal, arguing Curtis has embroiled her in litigation for years, causing her health problems, and that she and the couple’s children have since moved to Canada with the permission of the family court. She also claims it would be detrimental to the children for the court to take any action that might lead to a change in the parties’ custody order. Those are not grounds for dismissal of an appeal; we therefore must deny the motion.

Appellant Arezoo Sarvari appeals from a judgment dissolving her marriage to Respondent Farhad Talebi, arguing the trial court erred by refusing to consider her evidence on the parties’ date of separation, and by setting the amount of spousal support to zero. We conclude the trial court did not abuse its discretion by relying on appellant’s verified response to fix the parties’ date of separation, or by setting the amount of appellant’s spousal support at zero based on findings that appellant failed to testify credibly about her current earning capacity and income. Accordingly, we affirm.

Petitioner seeks permission to file a belated notice of appeal under the doctrine of constructive filing. (In re Benoit (1973) 10 Cal.3d 72, 81–82.) The Attorney General filed a response to the request stating that petitioner’s “allegations appear to be sufficient to make a prima facie showing for relief from default under the Sixth Amendment right to counsel. (Roe v. Flores-Ortega (2000) 528 U.S. 470, 480.)”
Accordingly, we conclude petitioner is entitled to relief.

Minor, D.X., appeals from the juvenile court’s dispositional order granting her father, N.X. (father), reunification services after sustaining allegations under Welfare and Institutions Code section 300, subdivision (d) that he sexually abused her. D.X. contends the court should have denied father reunification services under section 361.5, subdivision (b)(6), which applies where the child has been severely sexually abused as defined in the statute and it would not benefit the child to reunify with the parent. D.X. contends that although the manner in which father sexually abused her is not specifically identified in the statute, the statute does not limit the specific acts of sexual abuse that the court can deem “severe.” The court’s failure to apply the statute in her case, she argues, is reversible error. We concur and reverse.

K.Y. (mother) appeals from the juvenile court’s July 29, 2021 order denying her petition under Welfare and Institutions Code section 388, requesting the return of her then eight-month-old son, B.Y., to her custody. After reviewing the juvenile court record, mother’s court-appointed attorney informed this court he could find no arguable issues to raise on mother’s behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.) Mother filed a letter but failed to make the requisite showing. We dismiss the appeal.

At a dispositional hearing in May 2021, the juvenile court adjudged then six month-old B.Y. a dependent child under Welfare and Institutions Code, section 300, subdivision (b)(1) (failure to protect) after sustaining allegations appellant, K.Y. (mother), failed to adequately feed him, causing him to lose weight. The court ordered B.Y. removed from mother and ordered her to participate in reunification services. Mother appealed. After reviewing the juvenile court record, mother’s court appointed attorney informed this court he could find no arguable issues to raise on mother’s behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.)

Appellant Anthony M. (Anthony) appeals the order granting respondent, his ex wife Emily M. (Emily), a domestic violence restraining order (DVRO). He contends that the trial court erred in granting the permanent DVRO because he was never properly served with the temporary DVRO. Emily served Anthony’s prior counsel rather than having a nonparty to the action serve him directly. Thereafter, Anthony appeared at a hearing on the restraining order without making objection to the service. Anthony waived any objection to the service. We affirm.

The District Attorney of Kings County filed an amended information on March 3, 2020, charging defendant Henry James Canty with felony driving under the influence of an alcoholic beverage (Veh. Code, § 23152, subd. (a); count 1), driving while having 0.08 percent or more, by weight, of alcohol in his blood (Veh. Code, § 23152, subd. (b); count 2), and, as to both counts, alleging defendant did so within 10 years of conviction for a similar offense (Veh. Code, §§ 23550, 23550.5) and after serving two prior prison terms (Pen. Code, former § 667.5, subd. (b)).
After a two-day trial, the jury convicted defendant of both charges. Defendant waived a jury determination of his prior convictions and the trial court found the prior conviction allegations to be true.

Defendant Acencion Bermudez contends on appeal that the three one-year prior prison term enhancements, imposed based on his prior felony convictions for drug possession and sale and firearm possession, should be stricken pursuant to Penal Code section 667.5, subdivision (b), as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136) and section 1171.1, as added by Senate Bill No. 483
(2021–2022 Reg. Sess.) (Senate Bill 483). The People concede the enhancements should be stricken and defendant’s term of imprisonment should be reduced.

Appellant Donald Renee Jones appeals his conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with the special allegation that appellant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Separately, appellant appeals 2 one-year prior prison term enhancements imposed pursuant to former section 667.5, subdivision (b). For the reasons set forth below, we strike the former section 667.5, subdivision (b) enhancements and otherwise affirm the judgment.

Defendant seeks postconviction relief from his conviction of conspiracy to commit robbery of Manjit Singh. We conclude the evidence on which he relies was either: not “newly discovered,” or not “evidence of actual innocence,” or was lacking in credibility. (See Pen. Code, §§ 1473.6–1473.7.) We therefore affirm the trial court’s denial of postconviction relief.