CA Unpub Decisions

Genny Alberts, American Development Corporation (ADC), Ranbir S. Sahni, and 3R Real Estate Corporation (collectively, the Appellants) filed complaints for malicious prosecution against David Rosenbaum, the attorney who initiated a cross-complaint against them on behalf of National Foundation for Housing, Inc. (NFH), and B. Casey Yim and his law firm, the attorneys who took over the representation of NFH from Rosenbaum and continued to prosecute the cross-complaint (collectively, the Attorneys).[2] ADC and 3R obtained summary judgment on the cross-complaint, and Alberts and Sahni were dismissed. The malicious prosecution complaints, which were consolidated in the trial court, allege the cross-complaint was brought without probable cause and with malice because the cross-complainants had no personal knowledge or belief of facts supporting their action, they failed to adequately investigate the factual and legal basis for their action but continued to maintain their action against [the Appellants] despite discovery establishing the lack of any factual basis for their action . . . .
The Attorneys filed special motions to strike the complaints under the anti SLAPP statute (Code Civ. Proc., 425), claiming the Appellants could not demonstrate a likelihood of success on the malicious prosecution complaints. The trial court granted the motions and struck the complaints. The Appellants contend the trial court erroneously found there was probable cause to file the cross complaint. After performing a de novo review of the record, Court find the Appellants have not made the necessary showing that the cross complaint was filed and maintained with malice. Accordingly, Court affirm.

The issue on appeal in this case is whether the trial court erred in determining that, as a matter of law, appellant William Almon has no right to use public utility easements located upon the neighboring property of respondent Blandor Way LLC, a Delaware Limited Liability Corporation, for the purpose of connecting appellant's property to the public sewer line installed underneath Blandor Way. The parties brought opposing motions for summary judgment, which the court resolved in favor of respondent. Appellant argues that the public utility easements at issue are appurtenant to his property and he is within the class of persons entitled to use the public utility easements because his property is landlocked, the easements were established for the benefit of his property, and installation of a sewer connection across respondent's property is the only possible way for his property to connect to the main public sewer line. Respondent counters that appellant is a private individual who is not within the class of persons entitled to use the public utility easements since appellant is not a public utility provider and appellant may use the private easements to connect to the public sewer. In this appeal, the parties do not dispute that public utility easements were created; the only question is their nature and scope.

Following a court trial, the court found defendant Adam Torrez guilty of 19 counts of lewd conduct on a child under 14 (Pen. Code, 288, subd. (a)), and one count of substantial sexual conduct with a child under 14 ( 288.5, subd. (a)), and also found true allegations that defendant had substantial sexual conduct with the victim, Carlos A., within the meaning of section 1203.066, subdivision (a)(8), as to all counts. The court also found defendant guilty of one count of committing a lewd act on a child under 14, and one count of substantial sexual conduct with a child under 14, and found true allegations that defendant had substantial sexual conduct with the victim, Jane Doe, as to both counts. The court sentenced defendant to a life term plus 66 years in state prison. This court affirmed the judgment on appeal. (People v. Torrez (July 18, 2003, H021287) [nonpub. opn.]), and the Supreme Court denied defendants petition for review.
Defendant subsequently filed a petition for writ of habeas corpus in the trial court, contending that he was denied his right to effective assistance of trial counsel. The trial court issued an order to show cause. Following an evidentiary hearing, the trial court denied defendants petition with respect to the 20 counts involving Carlos, but granted the petition as to the two counts involving Jane. It therefore set aside the judgment and ordered a new trial as to those counts only.

Defendant Larry John Sprankle was found guilty of receiving stolen property (Pen. Code, 496, subd. (a))[1]and of grand theft of access card account information ( 484e, subd. (d)). He was sentenced to the upper term for receiving stolen property.On appeal, he contended that (1) the trial court erred because it did not, sua sponte, instruct the jury on mistake of fact; (2) the trial court abused its discretion in ordering restitution and fines; and (3) the two one-year enhancements imposed for prior prison terms must be stricken because the record does not show that defendant voluntarily and intelligently admitted those prior terms. In a supplemental brief, Sprankle also arguedthat the courts imposition of the upper term for receiving stolen property, without any finding by the jury of the aggravating factors on which this term was based, violates Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely).
In a previous opinion, Court agreed that the trial courts restitutionary order must be stricken. In addition, we reversed and remanded for reconsideration of the sentence imposed for receiving stolen property, in view of Blakely. In all other respects, Court affirmed the judgment.

Louis Cavalcanti sued Silver State Helicopters, LLC, and its employee, Mathias Puhlhofer (collectively, Silver State) for breach of contract and other claims arising from a written contract. Silver State petitioned to compel arbitration of Cavalcantis claims based on a clause of the contract that referred to binding arbitration. The trial court denied Silver States petition, finding that the clause in question was not in fact an agreement to arbitrate disputes. Silver State contends that the trial court erred in failing to resolve any doubts on that issue in favor of arbitration. Court find no error, and affirm the order denying arbitration.

Appellant Carolyn N. seeks reversal of the juvenile courts judgment terminating her parental rights because of what she argues is insufficient evidence to support the juvenile courts finding of adoptability, and the courts legal error in evaluating a certain exception to adoption. Court affirm the juvenile courts judgment.

Auerbach Acquisition Associates, Inc. sued both U.S. Bancorp (USB) and Greg Daily for breach of contract, fraud, interference with contractual relations, and interference with prospective economic advantage. Auerbach sought to hold USB vicariously liable for Dailys conduct on the ground that USB is the successor to NOVA Corporation, of which Daily was allegedly an agent. The trial court entered judgment in favor of USB on all of Auerbachs claims. Court affirm because the record contains no evidence that Daily was NOVAs agent.

Appellant Dorcas Astacio, former wife of respondent Pedro Astacio, appeals from an order determining the amount of arrearages she owes to Pedro as a result of a prior order by which the court decreased Pedros child support obligation, retroactively to the date of Pedros filing of his request for modification. Dorcas also purports to challenge on this appeal several rulings included within the prior order modifying child support, but because Court find that the notice of appeal was untimely as to that order, Court dismiss that portion of the appeal. As to the order setting the amount of arrearages as a result of the retroactive decrease in child support and establishing the terms of the repayment, Court find no error. Court therefore affirm that order in full.

Shane Harmon appeals from the judgment entered after he pleaded no contest to possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)) and unlawful possession of ammunition. ( 12316, subd. (b)(1).) He contends that the trial court erred by denying his motion to suppress the evidence found when police conducted a protective sweep of the house where Harmon was arrested. Court affirm the judgment.

Maureen Keowen sued the Regents of the University of California formedical malpractice and negligently hiring and training Dr. Larry Ford. The Regents demurred on the ground that both claims were barred by the statute of limitations. The trial court sustained the demurrer without leave to amend, and Keowen appeals. court affirm.

Shane Huang found Ben Wertzberger and Adar NeEman entering his house, accused them of stealing his marijuana, took them captive at knifepoint, killed them, and disposed of their bodies in the desert. Huang was arrested, charged, and ultimately convicted of two counts of first degree murder with a true finding on a multiple murder special circumstance allegation, and sentenced to state prison for two terms of life without the possibility of parole. Huang appeals and petitions for habeas corpus relief, challenging the sufficiency of the evidence and the adequacy of trial counsels representation, and contending there were instructional errors. Court reject all of Huangs contentions, affirm the judgment, and deny the habeas corpus petition.

Oscar Hernandez appeals from the judgment entered after a jury convicted him of selling cocaine base.
On April 18, 2006, Hernandez was arrested following a hand-to-hand sale of rock cocaine to another man. Several hundred dollars and a glass tube containing cocaine base were found in Hernandezs possession. Hernandez was charged by amended information with one count of selling cocaine base (Health & Saf. Code, 11352, subd. (a)). It was further alleged that Hernandez had suffered two prior violent or serious felony convictions within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (b)-(d)) and had served one separate prison term for a felony (Pen. Code, 667.5, subd. (b)). The judgment is affirmed.

Moises Sotelo appeals the judgment entered after a jury convicted him of attempted murder (Pen. Code[1], 187, subd. (a), 664), aggravated mayhem ( 205), and assault with a deadly weapon ( 245, subd. (a)(1)). The jury also found true the allegation that the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)). In a bifurcated trial, the trial court found true allegations that Sotelo had served a prior prison term (667.5, subd. (b)) and had suffered a prior conviction that qualified as a strike and a serious felony ( 667, subds. (a), (d)(1), (e)(1), 1170.12, subds. (b)(1), (c)(1)). He was sentenced to a total state prison term of 30 years to life plus 33 years. He contends (1) the evidence is insufficient to support his conviction for aggravated mayhem; (2) there is insufficient evidence supporting the gang enhancement finding; (3) the trial court erred in refusing to stay his sentence on the attempted murder count pursuant to section 654; and (4) he was sentenced to the upper term on the attempted murder count in violation of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). Court affirm.

This appeal arises from a legal malpractice action concerning the handling of a previous legal malpractice action. Cynthia Bergmann, Marshall Noel, and Canterbury Womens Health Care, Inc. (Canterbury) retained Fred Rucker to represent them in malpractice actions against their former attorneys. Bergmann, Noel, and Canterbury (collectively appellants) lost one of those suits, and they then filed suit both against Rucker and against Rosen & Associates, P.C. and Robert Rosen (collectively Rosen), who had referred them to Rucker. This appeal concerns only the summary judgment entered in favor of Rosen; the action remains pending in the trial court with respect to Rucker. Court affirm.