CA Unpub Decisions

Homeowners sued a condominium homeowners' association for mold contamination in their home allegedly caused by water leaks from common areas controlled by the association. The association moved to strike the action as a strategic lawsuit against public participation (SLAPP suit). (Code Civ. Proc., $ 425.16 [all section references are to this code except as noted].) The motion was prompted by the homeowners' allegations that the association promised to investigate and remediate mold after the homeowners were sued by a tenant for mold contamination, and while that litigation was ongoing. The association argued that those promises were protected acts in furtherance of its right of free speech because its promises to the homeowners were "made in connection with an issue under consideration or review by a . . . judicial body." ($ 425.16, subd. (e)(2).)
The trial court granted the motion to strike two of the homeowners' three causes of action. The court dismissed causes of action for negligence and breach of fiduciary duty, and left intact a breach of contract claim. The homeowners appeal the partial dismissal, and the association cross appeals to demand the dismissal of the remaining cause of action. Court conclude that the homeowners' causes of action are based on the association's alleged failure to remediate mold contamination and do not arise from the association's exercise of free speech rights. Court therefore reverse the order to the extent that it struck two of the homeowners' claims, and affirm the order in denying the motion to strike one of the claims.

Aaron H. (petitioner) is the father of Aaron H. (Aaron), who was made a dependent of the Contra Costa Juvenile Court. Pursuant to California Rules of Court, rule 8.452, petitioner seeks extraordinary writ review of the order terminating reunification services and setting a permanency planning and implementation hearing for Aaron under Welfare and Institutions Code section 366.26. Petitioner contends there was insufficient evidence to support the trial courts findings that Aaron could not be returned to him without substantial risk of detriment, that he could not reunify with Aaron if given additional time, and that the Department of Children and Family Services (Department) provided adequate reunification services. He also contends he was not given correct notice of the six month status review hearing. The petition for extraordinary writ is denied on the merits.

Defendant and appellant appeals from his conviction of attempted murder and assault with a firearm. He contends: (1) he was denied due process as the result of the denial of his Marsden motion;[1] and (2) imposition of the high term violated Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham). Court affirm.

Westlake Plaza Realty, Inc., dba Century 21 America (Century 21) filed an action against Patrick and Mary Leyden (the Leydens) alleging fraud, breach of contract and other causes of action regarding brokerage services performed by the Leydens as agents of Century 21. The Leydens responded with a cross-complaint against Century 21. The Leydens appeal from a judgment in favor of Century 21 on both the complaint and cross-complaint. They contend that Century 21 failed to prove damages as a result of their conduct, and that the trial court erroneously awarded tort damages for breach of contract. They also claim the evidence did not support the judgment. Century 21 cross appeals contending that the trial court awarded insufficient damages. Court affirm.

Two tenants of the Lincoln Place Garden Apartments brought this action against their landlords for a declaration of the parties rights under the Ellis Act. The trial court dismissed the action after granting the defendants motion to strike the tenants complaint as a SLAPP (Strategic Lawsuit Against Public Participation.)
Court address the following issues: (1) Did the landlords instigating eviction proceedings against the tenants after the judgment in this action moot the tenants appeal or their underlying action for a declaration of rights? (2) Did the landlords establish the tenants declaratory rights cause of action arose from actions by the landlords in furtherance of their constitutional rights of petition or free speech? (3) Did the tenants prayer for injunctive relief to prevent defendants from evicting plaintiffs from their residence subject this action to a motion to strike under the SLAPP statute, Court answer each of these questions in the negative and therefore reverse the judgment.

The trial court proceedings below commenced with cross petitions to confirm and vacate an arbitration award rendered in favor of Marcus & Millichap Real Estate Brokerage Investment Company (Marcus & Millichap). In the petition to vacate, Woodman Investment Group, LLC (Woodman) and Eli Sasson argued the arbitrator lacked jurisdiction over Sasson because he was not a signatory to the agreement between Marcus & Millichap and Woodman which included the arbitration clause. The trial court denied Marcus & Millichaps petition to confirm and granted the petition to vacate the award on the ground the arbitrator exceeded her powers and the award could not be corrected without affecting the merits of the decision. The court did not issue an order for rehearing under Code of Civil Procedure section 1287[1] and Marcus & Millichap did not appeal the order vacating the award. Subsequently, Marcus & Millichap moved the trial court for an order compelling Sasson to arbitrate the dispute and also filed a new demand for arbitration against Woodman with the American Arbitration Association. The trial court granted Marcus & Millichaps motion to compel arbitration, finding Sasson was the alter ego of Woodman. About a year and a half later, while the second arbitration was still pending, the trial court issued an unsigned minute order dismissing the trial court proceedings on the ground the proceedings were final and the court lacked jurisdiction to act further.
Woodman and Sasson contend they should not have to arbitrate this dispute for a second time because the trial court did not order a rehearing at the time it made the order vacating the arbitration award or at any time before the order vacating the arbitration award became final. They challenge the order compelling Sasson to arbitration and a subsequent order in which the trial court concluded a rehearing in arbitration is not barred based on the fact the court did not specifically order a rehearing in conjunction with the order vacating the arbitration award. Woodman and Sasson attempted to obtain appellate review of these orders through an appeal from the order dismissing the trial court proceedings. As discussed below, an unsigned minute order dismissing an action is not an appealable order. Based on the unusual circumstances presented in this case, however, Court have decided not to dismiss the appeal and instead to treat the improper appeal as a petition for writ of mandate. Court conclude the trial court had jurisdiction to decide the motion to compel arbitration despite the fact there was no order for rehearing, and substantial evidence supports the courts finding Sasson is the alter ego of Woodman. Accordingly, Court deny the petition for writ of mandate.

After a joint trial before separate juries, one jury acquitted Patrick Kitlas of first degree murder (count 1), but convicted him of second degree murder as a lesser included crime; residential robbery (count 2); and residential burglary during which the victim was present (count 3). (Pen. Code, 187, subd. (a), 189; 211, 212.5; 459, 460, subd. (a), 667.5, subd. (c)(21); all further section references are to the Penal Code.) The second jury acquitted codefendant Mark Itaev of counts 1 to 3 but convicted him of three counts of false personation (counts 4, 7, and 8), identity theft (count 5), and perjury (count 6). Only Itaev was charged in counts 4 to 8. ( 529; 530.5; 118, subd. (a).) Later, Itaev admitted that he committed the crimes charged in counts 4 8 while released on bail or on his own recognizance in another case. ( 12022.1.) The court sentenced Kitlas to a 6 year upper term for the count 3 burglary, a consecutive 15 years to life term for the count 1 second degree murder, and a concurrent term on the count 2 robbery. The court sentenced Itaev to an aggregate 6 year, 8 month term. Both defendants appealed, but Itaev voluntarily abandoned his appeal, which we dismissed.
Kitlas contends that the court erred in denying his (I) suppression motion ( 1538.5); (II) motion to quash the jury venire based on the prosecutors allegedly discriminatory use of peremptory challenges to exclude all African American jurors (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258); and (III) request to instruct the jury regarding heat of passion voluntary manslaughter as a lesser included crime of the count 1 murder. Court reject Kitlas contentions and affirm the judgment.

Danny Barnes appeals from a judgment entered in favor of Ralph s Grocery Company (Ralphs) after a jury found a Ralphs employee did not publish to others a claimed defamatory statement, You did not pay for that. The parties stipulated that a negative answer to that question would preclude appellants recovery for defamation and intentional infliction of emotional distress. Court find the trial court properly entered a defense judgment and did not abuse its discretion in rulings complained of or committed misconduct. Court therefore affirm.

A jury convicted Jose Castillo of first degree murder (count 1); 4 counts of premeditated attempted murder (counts 2, 4, 5, and 6); and possessing a gun while a felon (count 3). On counts 1 and 2, the jury found Castillo and a principal discharged a firearm causing death or great bodily injury. On counts 1 to 2 and 4 to 6, the jury found Castillo and a principal discharged and used a firearm. On all counts, the jury found Castillo committed the crimes to further a gangs purposes. The court imposed a 190 years to life aggregate sentence: on count 1, 25 years-to-life plus a consecutive 25 years to life term for personally discharging a firearm causing death; and on each of counts 2 and 4 to 6, consecutive terms of 15 years to life plus consecutive 20 years to life terms for personally discharging a firearm. The court stayed sentence on count 3 and the remaining enhancements.
Castillo timely appealed. He contends the court erred in (I) denying his post verdict motion to substitute new appointed counsel to litigate a new trial motion challenging trial counsels effectiveness, accepting an involuntary waiver of the right to counsel, and denying his proper new trial motion;[2] (II) instructing the jury on concurrent intent for attempted murder of multiple victims in a zone of risk termed the kill zone[;][3] (III) imposing an excessive sentence constituting cruel and unusual punishment; and (IV) failing to stay a second restitution fine. Court reject these contentions and affirm the judgment.

This action arises from a pair of failed residential real estate transactions involving multiple agency by the realtor. Following a bench trial on an action for breach of fiduciary duty, breach of contract and breach of the implied covenant of good faith and fair dealing, the trial court ruled in favor of the client buyer seller. It ordered specific performance and awarded damages for breach of fiduciary duty, lost rents and profits, and attorneys fees. Court affirm.

Defendants Smooch Reynolds and Jack Reynolds (the Reynolds) remodeled their Pasadena home pursuant to a conditional use permit (CUP) and variance that reduced their side yard setback requirement by almost two feet. In violation of the CUP and variance, however, the Reynolds extended their structure onto the setback area. The City of Pasadena (the City) sued for injunctive relief. The trial court granted the City summary judgment and issued a mandatory injunction requiring the removal of the encroaching portion of the structure. The Reynolds appealed from the judgment, which Court affirm.

Celia Macias appeals from a judgment entered after a jury found her guilty of possessing cocaine for sale. Macias contends evidence the police obtained from her dayplanner (or date book) and an intercepted cellular telephone call violated her Fourth Amendment right to be free from unreasonable searches and seizures, and the failure to exclude this evidence at trial violated her Fourteenth Amendment right to due process. Macias also contends the trial court violated her Sixth Amendment right to a jury trial when it imposed an upper term sentence on the offense based on factual findings not made by the jury. Court conclude the search was reasonable and the trial court did not err in imposing the upper term sentence. Accordingly, Court affirm.

Appellant challenges an order dismissing his action against respondent Hotel Stillwell, and the denial of his motion under Code of Civil Procedure section 473 for relief from that order. Court reverse the dismissal order.

Appellant Jose Emiliano Vallejo appeals from the judgment entered following his plea of no contest to possessing a controlled substance (Health & Saf. Code, 11350, subd. (a)). The court suspended imposition of sentence and placed him on formal probation for three years. Appellant claims the trial court erroneously denied his Penal Code section 995 motion. Court affirm the judgment.