CA Unpub Decisions

Plaintiff Michael Walsh appeals a judgment in favor of defendant Michael McBride following the trial court's grant of McBride's motion for judgment on the pleadings. Walsh's contention on appeal, though unclear, appears to be that the trial court improperly granted McBride's demurrers and motion for judgment on the pleadings. court affirmed.

Tyrone Elliott was convicted of petty theft with prior theft convictions and sentenced to two years in prison. In his appeal, he contends that his federal constitutional jury trial rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) were violated because the trial court, not the jury, determined the issue of his identification as the defendant who suffered the prior theft convictions. Court reject this argument. Elliott also personally filed two petitions for writ of habeas corpus. Court deny these petitions and affirm the judgment.

Plaintiffs, Poway Royal Mobile Homeowners Association and 273 of its members (collectively the Owners Association), appeal a postjudgment order awarding the defendants, the City of Poway, the City Council of the City of Poway, the City Manager James Bowersox, and the Redevelopment Agency (collectively the City), attorney fees for prevailing on the second amended complaint's claim arising under California's Mobilehome Residency Law (Civ. Code, 798 et seq.). The Owners Association contends the award is excessive because it includes fees incurred (1) in defending against the first amended complaint, which ostensibly did not include any claim based on the Mobilehome Residency Law, and (2) in bringing an unnecessary motion to consolidate. Court agree with the latter point, and reverse the order insofar as it concerns the amount of the award and direct the court to recalculate it. In all other respects, Court affirm the order.

This case is perhaps the tail end of a lengthy litigation saga involving an underlying partnership venture and 16 acres of real property located in Marina Del Rey. This episode of the saga arises from the simple breach of a $900,000 promissory note. The holders of the promissory note, plaintiffs Jona Goldrich and Jerome Snyder, sued to collect a delinquent sum certain, due on a date certain, from the maker of the note, a general partnership known as WLB-RSK Venture, and its two general partners Warren Breslow and defendant Raymond Kaplan. It is uncontested that the promissory note was properly executed, that payment was due by September 9, 1997, that it was unpaid, and that the action seeking payment was timely filed.
Contrary to Kaplans contentions, (1) summary judgment was properly granted against him because the trial court did not abuse its discretion in precluding any evidence of an affirmative defense and striking answers as sanctions for Kaplans willful disobedience of court orders and for discovery abuse, and (2) the court properly sustained the demurrer to a cross-complaint by Kaplan which raised claims previously adjudicated and resolved adversely to him and thus barred by res judicata.
Thus, the judgment against Kaplan and other defendants for approximately $2.5 million, including interest, is affirmed. Since Kaplans sole attack on the order awarding attorney fees is premised on his hoped-for loss of prevailing party status by Goldrich and Snyder, based on a reversal of the judgment under review (which is not to be), court affirm the award of approximately $395,000 in attorney fees.

Martha E. Hubbard filed an action against Blue Shield of California (Blue Shield) for age discrimination under the California Fair Employment and Housing Act (FEHA) and the common law. The trial court granted summary judgment in favor of Blue Shield, finding Hubbard failed to present evidence of a prima facie case of age discrimination or sufficient evidence to raise a triable issue of fact that Blue Shields legitimate reasons for its employment decisions were pretextual. Hubbard appeals and Court affirm the lower courts ruling.

Appellant Encino Park West Homeowners Association, Inc. (EPW) appeals the trial courts grant of summary judgment in favor of respondent Truck Insurance Exchange (Truck) on EPWs claims for breach of insurance contract, bad faith breach of contract, and fraud. Truck presented evidence that the parties had executed a general release covering the claims. EPW contends on appeal that the Release should be deemed void on grounds of economic duress, undue influence, fraud in the inducement, estoppel, and unconscionability. Court agree with the trial court that EPW did not present sufficient evidence to create a triable issue of fact as to any of the alleged bases for invalidating the Release, and affirm the judgment.

Father Socorro R. and maternal grandmother Christina B. appeal from orders of the juvenile court denying their respective petitions for modification pursuant to Welfare and Institutions Code section 388. Court affirm the orders.

In a plea bargain, defendant, Efraim Rosado, pled no contest to one count of methamphetamine possession (Health & Saf. Code, 11377, subd. (a)) and admitted the truth of the allegations he sustained one prior violent felony conviction (Pen. Code,[1] 667, subds. (b)-(i), 1170.12) and served one prior prison term. ( 667.5, subd. (b).) Defendant was sentenced to the middle term of two years, which was doubled ( 667, subd. (e)(2); 1170.12, subd. (c)(1)) plus a consecutive one-year term because of his prior prison term. ( 667.5, subd. (b).) The trial court imposed a $200 section 1202.4, subdivision (b) restitution fine and suspended a $200 section 1202.45 parole revocation fine. Defendant was ordered to pay a $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fee and a $20 section 1465.8 court security fee. Defendant was awarded 426 days of presentence credits consisting of 284 days of actual custody plus 142 days of conduct credit. After examination of the record, appointed appellate counsel filed an Opening Brief in which no issues were raised. Instead, appointed appellate counsel requested that we independently review the entire record pursuant to Peoplev. Wende (1979) 25 Cal.3d 436, 441. We have examined the entire record and are satisfied that appointed appellate counsel has fully complied with his responsibilities. No argument exists favorable to defendant. (Smithv. Robbins (2000) 528 U.S. 259, 277-284; People v. Wende, supra, 25 Cal.3d at p. 441.)
The judgment is modified to impose the penalty assessments and state court construction penalties discussed in the body of this opinion. The judgment is affirmed in all other respects. A corrected abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation by the superior court clerk.

A jury found defendant Teng Yang guilty of firing a nine-millimeter semiautomatic handgun into a crowd of young people outside a dance. Defendant contends the trial court erred in denying his motions to have the jacket he was wearing that night tested for gunshot residue or, alternatively, to appoint new counsel to investigate whether his attorneys failure to have done that before or during trial constituted ineffective assistance of counsel. Further, he argues: (1) the court erred in admitting statements detectives elicited from him in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] and in admitting evidence obtained in a warrantless search; (2) substantial evidence does not support the jurys gang enhancement finding; (3) the court erred in denying his motion to bifurcate the trial of the gang enhancement allegation from the trial on the assault charge; (4) one of the jury instructions proposed by the People should not have been given; and (5) imposition of the upper terms for assault and a firearm enhancement violated his Sixth Amendment rights. We conclude the expert opinion testimony proffered in support of the gang enhancement does not rise to the level of substantial evidence and we shall reverse that finding. Court also conclude the upper terms were not properly imposed here. In all other respects, Court affirm the judgment.

Pursuant to a negotiated disposition, defendant Paul Ramirez pled no contest to one count of voluntary manslaughter (Pen. Code, 192, subd. (a) - further undesignated statutory references are to the Penal Code unless otherwise specified), and admitted personal firearm use ( 12022.5, subd. (a)(1)) and gang enhancements ( 186.22, subd. (b)(1)) in exchange for dismissal of two counts of attempted murder and related charges as well as a sentencing lid of 31 years in prison. The parties also agreed that the trial court would terminate defendants probation in Sacramento County Superior Court No. 02F05922 (hereafter No. 02F05922). After finding a factual basis for the plea and admissions ( 1192.5), the court imposed a 31-year prison term, including a concurrent midterm sentence of three years in No. 02F05922.
On appeal, defendant argues that he should be permitted to withdraw his plea because the court failed to secure a factual basis for the gang enhancement allegation. Defendant also asserts the courts revocation of probation and imposition of a concurrent term in No. 02F05922 violated the plea agreement because he agreed to termination (but not revocation) of probation.
Court conclude that although the court failed to adequately elicit a factual basis for defendants admission of the gang enhancement allegation at the time the court accepted the admission, the error was harmless because the probation officers report contained sufficient evidence which could have been used to establish such a factual basis. Court also conclude the agreement to terminate probation in No. 02F05922 did not preclude revocation of probation and imposition of a prison sentence. ( 1203.2, subd. (c).) Consequently, Court affirm the judgment.

Plaintiff appeals from the trial courts entry of judgment in favor of defendants Litton Loan Servicing, LLP (Litton) and The Provident Bank, a corporation (Provident) after sustaining their demurrer. Court reverse the judgment, vacate the courts order sustaining the demurrer, and remand this matter to the trial court for further proceedings.

Mother Nicolette B. appeals from an order of the juvenile court denying her family reunification services with her sons Andrew and Anthony. Court find no abuse of discretion and affirm the order.

By petition for writ of prohibition in this court, petitioner Reynaldo Cruz challenges the denial of his motion to dismiss the charge of leaving the scene of an accident alleged against him under Vehicle Code section 20001, subdivision (a). Court grant the relief requested with respect to this offense.

A modification decision.