CA Unpub Decisions

In this suit for breach of contract and unjust enrichment, plaintiff Fred Steiner (plaintiff) appeals from a summary judgment entered in favor of defendant CBS Broadcasting Inc. (defendant). Plaintiff contends defendant owes him royalties for defendants use of music plaintiff composed for some of defendants television programs. Specifically, plaintiff claims royalties from defendants sale of the television programs in home video (DVD and VHS) format.
The trial court determined as a matter of law that plaintiffs claims are barred by the statute of limitations. It further that determined the terms of the contracts entered into by plaintiff and defendant for plaintiffs composition of music do not support plaintiffs breach of contract claims.
Our examination of the contracts and the record shows that plaintiff is correct when he contends there are issues of fact regarding the statute of limitations. There are also issues of fact regarding whether production of the DVDs and VHS tapes involved motion picture synchronization and the licensing of motion picture synchronization rights. However, those issues are not material issues that need to be resolved by trial because the controlling issue in this case is whether production of DVDs and VHS tapes involves licenses relating to theatrical motion picture synchronization rights. There is a provision in the subject contracts that provides that plaintiff is only entitled to royalty payments based on money received by defendant that is attributable to licenses relating to theatrical motion picture synchronization rights. Because the production of the home video of the television programs for which plaintiff composed music did not involve theatrical motion picture synchronization, plaintiff is not entitled to royalties from the sale of that home video. Therefore, Court affirm the summary judgment.

Defendant Michael Alejo appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of possession of a firearm by a felon (Pen. Code,[1] 12021, subd. (a)(1)), and found true the criminal street gang allegation ( 186.22, subd. (b)(1)(A)). The trial court found true the allegation defendant served a prior prison term ( 667.5, subd. (b)). The trial court imposed the high term of three years for the offense, four years for the gang allegation, and one year for the prior prison term, for a total of eight years.
On appeal, defendant challenges the trial courts denial of his suppression motion, the sufficiency of the evidence supporting the gang enhancement, denial of a request for jurors identifying information and an evidentiary hearing, and imposition of the high term. Court agree that the evidence is insufficient to support the gang enhancement. Court reject the remainder of his contentions.

Plaintiff Martin Cadillac Company, Inc. (Martin) appeals from a judgment entered as the result of the trial court granting a special motion to strike brought by defendants John K. Pierson, Leonard B. Ference, Pierson Law Firm, APLC (collectively Pierson) and Cyrus Maloo (Maloo) under Code of Civil Procedure section 425.16, Californias anti-SLAPP[1](Strategic Lawsuit Against Public Participation) statute,[2]in response to Martins lawsuit against Pierson for malicious prosecution of an underlying personal injury action arising out of a vehicle accident. Court affirm.

Defendant and appellant Darnell Lamar Smith appeals from a judgment entered after revocation of his probation. Appellants sole contention on appeal is that witness Aaron Carter was not credible in testifying, and therefore, there was insufficient evidence to prove a violation of probation. Court disagree and affirm.

Defendant Juan Viera pleaded guilty to felony stalking (Pen. Code, 646.9, subd. (b).).[1] The trial court placed him on probation. After two successive probation violations, the trial court revoked probation and sentenced defendant to the upper term of four years. Defendant argues that the imposition of the upper term violates Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) because the three aggravating factors were neither admitted by defendant nor submitted to a jury. We disagree because at least two of the aggravating factors are based on recidivism, and thus fall outside the rule of Cunningham, and those two factors are sufficient to justify the upper term.
Defendant also challenges the imposition of a second restitution fine under section 1202.4, and a $20 court security fee under section 1465.8. The People concede that the second restitution fine is improper. Court reject defendants challenge to the court security fee. Court modify the abstract of judgment to strike the second restitution fine, and otherwise affirm.

Jai Verma appeals from a judgment entered after a jury convicted him of grand theft by embezzlement. (Pen. Code, 487, subd. (a), 508.) He contends (1) his conviction is not supported by substantial evidence, (2) the trial court instructed the jurors incorrectly, and (3) the court may have committed an error when imposing a restitution fine. Court reject these arguments and affirm.

As part of a complex real estate transaction involving purchase of a commercial building, appellant signed three promissory notes. Each promissory note was secured by a deed of trust on the property in favor of the noteholders, who included respondents, failed to make any payments on the promissory notes and two noteholders attempted foreclosure.

Court appointed counsel to represent Appellant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on his behalf. Court have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) Aydelott was given 30 days to file written argument in his own behalf, and court received a handwritten statement from him on August 4, 2006.
After a full review of the record, the entire file in case number G032781 of which court took judicial notice, appointed counsel's brief and declaration, and the handwritten statement from appellant, court affirm the judgment.

Appellant's appeal was successful, and court included in their opinion a standard provision stating "Appellant is to recover her costs on appeal." Appellant interpreted that as allowing her to recover not only the costs Appellant actually paid, but also the value of those which were waived as a consequence of our order. Target disagreed, and filed a motion to tax costs.

Appellant was convicted of carjacking and the jury found it true that appellant had personally used a firearm in the commission of the offense. Appellant was sentenced to 15 years in state prison, but complains the court erred in excluding evidence appellant offered and restricting his attorney's closing argument. court find no errors and affirm.

Defendant pled no contest to cultivating marijuana. The trial court sentenced him to 90 days in jail and two years' probation. On appeal, appellant contends that his cultivation was a nonviolent drug possession offense and qualified him for probation without incarceration under Proposition 36. Court disagree and affirm the judgment.

Defendant and Appellant, admitted misdemeanor vandalism, Penal Code section 594, subdivision (b)(2)(A), with damage of less than $400, and was ordered to continue on probation, spend 80 hours in the juvenile court work program, spend four days in juvenile hall, and pay victim restitution. After a contested restitution hearing, the trial court set restitution at $1,452.61. Appellant asserts the restitution award is not supported by substantial evidence. Court disagree and affirm.

Defendant appeals the revocation of her probation. Appellant contends that insufficient evidence supports the revocation. Court disagree and affirm.

A criminal law decision regarding count I assault on a peace officer likely to produce great bodily injury (Pen. Code, $ 245, subd. (c)) with personal infliction of great bodily injury ($ 12022.7, subd. (a)); count II assault on a peace officer likely to produce great bodily injury ($ 245, subd. (c)); count III escape or attempted escape after arrest with force or violence (S 836.6, subd. (c)) with personal infliction of great bodily injury (S 12022.7, subd. (a)); and count IV resisting an executive officer (S 69). As to all counts, the district attorney specially alleged appellant had sustained a prior prison term (S 667.5, subd. (b)).