CA Unpub Decisions

Defendants Daniel J. Niemann, NPI Century City, LLC, and Niemann Properties, Inc. (collectively, defendants) were the prevailing parties in this long-running lawsuit filed by plaintiff Legendary Investors Group No. 1, LLC (plaintiff, Legendary). The trial court awarded defendants contractual attorney fees in the amount of $1,047,313.72. Plaintiff appeals, contending the attorney fees award was excessive and unsubstantiated. We find no abuse of discretion and affirm.

A jury convicted Victor Saldana of the first degree murder of Akeem Leggins, second degree robbery, and the unlawful driving or taking of a vehicle. As to the robbery count, the jury found true the special allegation the offense was committed to benefit a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). The jury also found true multiple firearm-use enhancements. Saldana contends on appeal the admission of the pathologist’s hearsay testimony concerning an autopsy report prepared by a nontestifying pathologist violated his Sixth Amendment right to confrontation as set forth in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Saldana also contends the trial court erred in imposing the 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C). Saldana further contends remand is necessary to allow the trial court to exercise its discretion whether to impose the firearm enhancements imposed pursuant to section 12022.53, subdivisions (b) and (d).

A jury convicted appellant Pierre Lakell Morris of rape, kidnapping to commit rape, assault, three counts of kidnapping, and two counts of second degree robbery. The trial court sentenced appellant to a term of 130 years to life in state prison. On appeal, appellant asserts evidentiary errors, instructional error, and prosecutorial misconduct. He also contends that the evidence was insufficient to support several of his convictions and sentence enhancements. Finally, he argues that we should remand for the trial court to exercise its discretion under Senate Bill No. 620 (2017-2018 Reg. Sess.) whether to strike a firearm enhancement.
We vacate the sentence and remand the matter for the trial court to exercise its discretion whether to strike the firearm enhancement. We otherwise affirm.

Defendant and appellant Manuel Vela (defendant) appeals from his judgment of conviction of making a criminal threat. In our original unpublished opinion filed August 1, 2018, we affirmed the judgment after finding no merit to defendant’s contentions that the trial court abused its discretion by admitting testimony regarding uncharged misconduct, and that the trial court should have given a limiting instruction sua sponte with regard to evidence of one of the incidents of misconduct.

Vincent Stone was convicted following a jury trial of second degree robbery. On appeal he argues the trial court erred by admitting photographs taken from a social media account, refusing to strike the victim’s testimony after he would not disclose the names of potential eyewitnesses and denying Stone’s motion for a new trial based on prosecutorial misconduct. Stone also argues the evidence was insufficient to support the jury’s finding the robbery was committed for the benefit of a criminal street gang. We remand to allow the trial court to consider whether to exercise its discretion under a new law, effective January 1, 2019, to strike or dismiss a prior serious felony conviction for sentencing purposes. In all other respects we affirm.

Defendant Roland Gonzales appeals from a trial court order extending his civil commitment under Penal Code section 1026.5, after being found not guilty by reason of insanity. Defendant contends the trial court erred by failing to obtain a personal waiver of his right to a jury trial in the commitment proceeding. We will reverse the order.

Landlord David Cheung appeals a judgment after a jury trial about a commercial leasing transaction. The jury awarded a split decision. Cheung lost almost twice what he won: he won $16,200 in damages for breach of the lease by tenant Guang Tong, but Tong won $30,078.85 in damages against Cheung for intentional misrepresentation and negligence. Cheung appeals this loss, as well as an attorney fee award against him. Tong does not appeal. We affirm.
Tong died on December 24, 2017 while this appeal was pending. We substituted Li Hong Zhang, Tong’s successor in interest, in his place. The text of this opinion refers to “Tong” rather than “Zhang,” however, because Tong was the actor before and during trial.

Plaintiffs alleged that their elderly father and husband suffered injuries and neglect while in the care of defendants, which eventually led to his death. Defendants—a hospital, doctor, and nurses—demurred to the complaint, asserting that the allegations were uncertain and that the complaint failed to state a cause of action. After successive complaints and demurrers, the trial court sustained defendants’ demurrers to the third amended complaint without leave to amend.
We reverse. Although the third amended complaint was verbose, the trial court erred by sustaining the demurrers on uncertainty grounds. In addition, the third amended complaint stated viable causes of action against the defendants, and the allegations do not warrant a finding that certain claims are time-barred.

Appellant Tyrran D. Burrell appeals from the superior court’s denial of his motion to modify his sentence to strike four enhancements under Penal Code section 667.5, subdivision (b), on the ground that the convictions underlying those enhancements were reclassified under Proposition 47 as misdemeanors and no longer support the enhancements. In our previous opinion, we affirmed the trial court’s ruling. However, after granting review, the California Supreme Court vacated that decision and remanded the case for reconsideration in light of People v. Buycks (2018) 5 Cal.5th 857 (Buycks). As we explain, in light of appellant’s clear right to relief by way of habeas corpus under Buycks, and in the interests of judicial economy, we exercise our discretion to treat this appeal as a petition for writ of habeas corpus and grant relief. We strike the four section 667.5, subdivision (b) enhancements based on the reclassified offenses. Further, because the trial court imposed the maximu

Kelley A. Lynch appeals from an order denying her motion to set aside the renewal of a default judgment in favor of Leonard Norman Cohen. Lynch contends the renewal of the default judgment was void because Cohen never properly served the summons and complaint on her by personal service or substituted service. However, on January 17, 2014 the trial court denied Lynch’s motion to vacate the default judgment, finding she had failed to overcome the presumption created by the proof of service that she was properly served and had actual notice of the complaint, and she failed to act diligently to set the judgment aside. Because Lynch failed to appeal the order denying her motion to vacate the judgment, she is now barred by issue preclusion from relitigating whether she was properly served with the complaint.

Kelley A. Lynch appeals from an order denying her motion to set aside an order registering a Colorado restraining order in California. Lynch contends the trial court, by registering the Colorado restraining order, created a new California domestic violence restraining order without due process. She contends the new order is void because the trial court issued the order without prior notice and hearing, the trial court lacked jurisdiction to alter the Colorado order, and Lynch did not consent to proceedings before a commissioner. We affirm.

Defendants appeal from an order denying their motion to compel arbitration (Code Civ. Proc., §§ 1281.2, 1294.2). We affirm.

Adrian Foster appeals from a guilty verdict of felony possession of ammunition by a felon, among other charges, and from a prison sentence that included an on-bail enhancement. He presents three arguments: that he did not forfeit his right to appeal a suppression motion by failing to renew the motion in superior court after it was denied at his preliminary hearing; that even if there was a forfeiture, he may nonetheless appeal the denial of the suppression motion because his counsel provided ineffective assistance; and that the on-bail enhancement should be stricken because the trial court failed to obtain a personal admission from him and instead relied on his counsel’s statements that he intended to admit the enhancement. We find the Fourth Amendment issue was forfeited, but Foster was not denied effective assistance of counsel because the suppression motion was not meritorious.

Defendant Barry John Sanford appeals a judgment entered upon a jury verdict finding him guilty of continuous sexual abuse of a child under the age of 14, forcible oral copulation of a minor 14 years of age or older, and performing a lewd or lascivious act on a child 14 or 15 years of age. The trial court sentenced Sanford to 22 years in state prison. Sanford contends his rights to due process and a fair trial were violated when the trial court failed to fully re-advise him of the risks of representing himself after additional charges were filed against him. We affirm the judgment.