CA Unpub Decisions

Defendant and cross-complainant The Best Service Company, Inc. appeals from a judgment in favor of plaintiff and cross-defendant Wells Fargo Bank, N.A. following a grant of summary judgment for plaintiff on its complaint, the sustaining of plaintiff’s demurrer to defendant’s second amended cross-complaint, and a denial of summary judgment for defendant on the third amended cross-complaint. We affirm.

Defendant David Smith and his brother, James Smith, encountered Christopher Lane and his girlfriend, M. Allen, on a Long Beach sidewalk. The foursome exchanged insults and then blows. The altercation turned deadly when defendant shot Lane three times. Defendant also threatened Allen with the gun.
A jury rejected defendant’s theories of self-defense and defense of others and convicted him of second degree murder and assault with a firearm. It also found true a firearms enhancement allegation related to the murder, on which the trial court imposed the then-mandatory sentence.

On May 19, 2014, Howard Fuchs (Fuchs) obtained a default judgment in the Supreme Court of New York in the amount of $1,917,336.23 against Joel Wertman (Wertman) and Mustard Pancakes, Inc. (Mustard) (collectively defendants). On June 8, 2016, Fuchs applied for entry of judgment against Mustard and Wertman on the sister state judgment in the Los Angeles County Superior Court. On August 29, 2016, Fuchs filed an amended application for entry of judgment. That same day, the clerk for the Los Angeles County Superior Court entered judgment against defendants. Defendants moved to vacate and stay enforcement of the judgment on the grounds that the Supreme Court of New York lacked personal jurisdiction over them and thus the sister state judgment could not support a judgment in California. The trial court denied the motion on April 14, 2017 and Wertman appealed. For the reasons set forth below, we affirm.

Charles E. Moore appealed from the judgment entered on his conviction for residential burglary, with two five-year prior felony sentence enhancements, contending he was deprived of a fair and impartial jury because one of the jurors had himself recently been burglarized. In an opinion filed on July 16, 2018, we concluded the trial court acted within its discretion in retaining the juror. We therefore affirmed the conviction.
Moore sought review from our Supreme Court. While the matter was before the Court the Governor signed Senate Bill No. 1393, which granted trial courts the discretion to strike five-year enhancements imposed under Penal Code section 667, subdivision (a), enhancements that were previously mandatory. (See Sen. Bill No. 1393 (2017-2018 Reg. Sess.) §§ 1-2.) The enactment became effective on January 1, 2019. (See Cal. Const., art. IV, § 8, subd. (c).)

Dr. Kegan Allee (Dr. Allee), a Title IX investigator for respondent University of Southern California (USC), conducted an investigation in which she concluded that petitioner and appellant John Doe (John), a USC student, violated the university’s Student Conduct Code. She determined that Doe engaged in sexual intercourse with student Jane Roe (Jane) while Jane was intoxicated and incapable of consent, and that John knew or reasonably should have known that Jane was incapacitated. Dr. Allee recommended that John be expelled from the university.

This appeal concerns a contractor’s recovery under a performance bond. The surety company, Arch Insurance Company (Arch), issued the bond to a subcontractor for its work on a major construction project managed by Tutor-Saliba Corporation (Tutor). When the subcontractor defaulted, Arch tendered a replacement subcontractor to Tutor. Tutor rejected the tender and completed the work itself. Tutor then sued Arch for the reasonable cost of that work.
After a bench trial, the trial court concluded that Arch’s tender was inadequate, and awarded damages to Tutor. Arch now appeals and argues that the trial court erred in (1) concluding that Tutor was not required to provide proof of a valid contractor’s license, (2) calculating the reasonable cost of completing the subcontractor’s work, and (3) finding Arch liable for the cost of repairing drains on the site. We affirm.

A jury convicted Darnell Porter, Jr. of stalking, attempted first degree burglary, and carrying a loaded firearm. The jury found true allegations that Porter was armed with a firearm in the commission of the stalking and attempted burglary, and that a person was present in the residence during the burglary attempt. The trial court granted Porter probation. On appeal, Porter argues the trial court erred in (1) permitting the prosecution to present evidence that police could not access the contents of his cell phone without a passcode; and (2) denying a defense motion for a mistrial based on jury misconduct. We find no error and affirm.

A jury convicted Juan Tyler of robbing and attempting to murder Emanuel Jones. Jones and his partner Rayvon Apolonio thought Tyler was going to pay them $25,000 for marijuana. Instead, Tyler and his brother Daynian Tyler pulled guns and robbed Jones and Apolonio. After robbing Jones, Juan Tyler shot him. Juan Tyler raises three points on appeal. The first two are invalid and we affirm the judgment. On point three, we remand with directions. Statutory citations are to the Penal Code.

Judge Thomas M. Maddock of the Contra Costa County Juvenile Court took the position that a person who was declared a ward based on conduct that was felonious when committed, which conduct could be reclassified as a misdemeanor in the wake of Proposition 47, was not entitled upon reclassification to have his collected DNA sample and genetic profile removed from the database maintained by the California Department of Justice. That decision was unanimously sustained by the California Supreme Court, which held that “Proposition 47 does not authorize that relief.” The court further held that retention of a ward’s genetic information did not improperly infringe his non-constitutional privacy rights or deprive him of equal protection. Finally, disapproving Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, the court held that the enactment of Penal Code section 299 following passage of Proposition 47 did not require a different result.

C.J. (mother) appeals from the juvenile court’s order finding it had dependency jurisdiction (Welf. & Inst. Code, § 300, subd. (b); all further statutory references are to this code) to ensure the safety and regular care of her seven-year-old son, C.B.J., after mother suffered two psychiatric episodes requiring extended involuntary hospitalization. Mother also appeals the juvenile court’s dispositional order leaving B. at home in father’s care and removing B. from her physical custody, albeit with extensive, monitored visitation, while she remained out of the home. As we explain, substantial evidence supports the juvenile court’s orders. We therefore affirm.

This appeal, filed by Anthony Nguyen (“Nguyen”), Toan Quy Thai (“Thai”) and Minh Nguyet Thi Nguyen (“Minh Nguyen”) (hereafter collectively the appellants) is the 14th appeal filed by Nguyen, and the fourth in which Thai and Minh Nguyen have joined him, arising from six separate state court actions concerning the same general dispute. The dispute, which had its origins in a failed romance between Nguyen and Tu Hien Nguyen (“Hien”), the former wife of Thien Tran (“Tran”), has ensnared Tran’s attorney, Andrew D. Weiss, other attorneys, paralegals, and several bench officers in Nguyen’s incessant litigation. Along the way, in addition to the state court actions, there have been numerous federal court actions filed by Nguyen as well, and Nguyen, Thai and Minh Nguyen have been declared vexatious litigants.

Appellant Rene Mojarra was convicted of special circumstances murder for fatally shooting a rival gang member. On appeal, he contends the trial court erred in limiting his impeachment of a prosecution witness and failing to suppress statements used to prove his gang affiliation. He also challenges various aspects of his sentence. Because appellant was sentenced to life in prison without parole, we agree his parole revocation fine must be stricken, but in all other respects, we affirm the judgment.

Anthony Nguyen appeals from five postjudgment orders following his voluntary dismissal of his lawsuit against defendants Thien Kinh Tran, Thu Hien Thi Nguyen, and Sunny Duong, among others. Litigation continued for more than a year after Nguyen’s dismissal as he resisted the costs motion for $2,337.89 filed by defendants, Thien Kinh Tran, Thu Hien Thi Nguyen, and Sunny Duong (hereafter, respondents), including his attempt to remove the matter to federal court. The postdismissal proceedings generated the orders Nguyen now challenges, including a judicial reassignment that Nguyen failed to thwart with a disqualification motion, and Nguyen’s eventual designation as a vexatious litigant (§ 391). This appeal consolidates Nguyen’s challenge in one notice of appeal (G055097) to two of the postjudgment orders with his challenge to three other postjudgment orders specified in another notice of appeal (G055130); all five of the orders arose in the same postdismissal proceedings.

Anthony Nguyen appeals from two postjudgment orders entered by the trial court, following the court’s entry of a restraining order in favor of Thien Tran against Nguyen in June 2014. This appeal is closely related to another appeal (G055022) that is currently pending, as are two other related appeals filed by Nguyen (G05597 (consol. w/G055130) and G05455), all of which were argued together, along with an additional appeal Nguyen has filed from a different restraining order (G054555). As to the two orders Nguyen challenges in this matter, the governing standard of review on appeal requires us to presume the orders are correct unless Nguyen meets his burden to demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) While listing both orders in his notice of appeal, Nguyen does not mention one of them in his appellate brief, and provides no compelling reason to overturn either order. We therefore affirm the trial court’s rulings.