CA Unpub Decisions

Thelma Spirtos filed suit against her insurer and the insurers attorneys for their alleged mishandling of her insurance claim. The trial court dismissed Spirtoss lawsuit after sustaining demurrers without leave to amend. Court affirm. The lawsuit is barred by res judicata, because Spirtoss claims, based on the same set of facts, were found to be meritless and dismissed by the federal courts in a prior lawsuit between the same parties.

Defendant and appellant Valod Bazik appeals from the judgment entered following a jury trial that resulted in his conviction of possession for sale of heroin and offering to sell heroin. He contends he was denied due process as a result of: (1) the denial of his Pitchess motion and (2) being sentenced to the upper term in violation of his right to a jury trial. Court affirm.

Adam F. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he was a minor in possession of a firearm in violation of Penal Code section 12101, subdivision (a)(1). He was placed home on probation and contends the juvenile court erroneously rejected his affirmative defense of transitory possession. For reasons stated in the opinion, Court affirm the order.

Court review this case for a second time. Defendant and appellant Richard Molina was originally sentenced to 40 years to life in prison for the second degree murder of Stephen Clawson with the personal and intentional discharge of a firearm (Pen. Code, 187, subd. (a), 12022.53, subd. (d)). On his first appeal, we reversed the judgment because Molinas constitutional rights had been violated by the admission into evidence of his coerced confession. (People v. Molina (March 3, 2004. B163395) [nonpub. opn.].) After the remittitur issued and the matter was set for retrial, Molina moved to exclude evidence of the gun used to shoot Clawson, arguing that the discovery arose from his coerced confession (Evid. Code, 402). The trial court held an evidentiary hearing and denied the motion. Molina entered a negotiated plea of guilty to voluntary manslaughter, with admissions he had committed the offense for the benefit of a criminal street gang and had used a firearm (Pen. Code, 192, subd. (a), 186.22, subd. (b)(1), 12022.5, subd. (a)). The trial court sentenced Molina in accordance with his plea agreement to an aggregated state prison term of 31 years. Molina now contends his motion to exclude evidence of the gun used to kill Clawson was erroneously denied. Court disagree and affirm the judgment of conviction.

Luis Alfonso Mora was convicted after a jury trial on a variety of felony charges arising from his kidnapping and robbery of J. L. and H. S. and his sexual assault of H. S. On appeal Mora does not challenge his convictions for kidnapping J. L. with intent to commit robbery, two counts of robbery and sexual battery by restraint. However, he contends insufficient evidence supports his conviction for kidnapping with intent to commit rape; his conviction on the lesser included offenses of kidnapping and false imprisonment should be reversed; insufficient evidence supports the finding he used a firearm during the commission of the crimes; the prosecutor misstated the law regarding use of a firearm; the court erred in failing to instruct the jury sua sponte on voluntary intoxication; and the sentence imposed for false imprisonment should be stayed if it is not considered a lesser included offense of aggravated kidnapping. Court affirm in part, reverse in part and remand for resentencing.

Defendants, Edward W. Cutter and Edward W. Cutter, an Accountancy Corporation, appeal from an order amending two judgments to include them as judgment debtors. The judgments were entered against Fairhaven, a purported nonprofit entity, and amended to include defendants on alter ego grounds. Zoran Vujic, the moving party, is the executor of Alberta Patricia McNamara's estate. Court find the executor did not argue and made no evidentiary showing in the trial court that defendants controlled the litigation against Fairhaven and had an opportunity to present a defense. Because the executor failed to meet his burden as the moving party, Court reverse the order amending the judgments to include defendants as judgment debtors. Court direct the trial court to vacate the amended judgments.

This appeal arises from a prolonged dispute between two neighbors in Malibu. After Dr. David Martoranos initial complaints about the noise from Attorney Barry Fagans barking dog, Fagan began a lengthy scheme of harassment involving the playing of music in his rear yard while nobody was home, shouting invectives at Martorano, and finally installing in his rear yard a set of drums which Fagans children occasionally played. Pursuant to Code of Civil Procedure section 527.6, the trial court held a hearing on Martoranos harassment claim and then issued an order enjoining certain activities.
The injunction, in pertinent part, required that Fagan stay at least 20 feet away from Martorano and his wife, enjoined Fagan from harassing and threatening them and destroying their personal property, and placed various restrictions on Fagans use of sound producing devices at his residence. Court find Fagans challenges to the restraining order unavailing and affirm.

Appellant Sharon Rahmanian brought suit against respondent Brent Nelson for negligence and trespass. Her complaint arose from an incident in which water leaking from Nelsons property caused a mudslide on Rahmanians property. After trial, she was awarded $110,000 by the jury. She contends the trial court erred in permitting the jury to hear evidence and argument about funds she received from a collateral source. She further contends the jury awarded inadequate damages as a consequence of this evidence and of having been given an erroneous instruction on mitigation of damages. Court conclude any error that occurred was harmless or invited, and Court affirm.

A business sustained personal property loss in a fire. Pursuant to the terms of an insurance contract between the business and its insurer, two party-appointed appraisers and one court-appointed umpire appraised the actual cash value of the loss. Two of the three appraisal panel members agreed on the award. The trial court confirmed and declined to vacate the award. On appeal, the business contends the award exceeded the appraisers jurisdiction and was the result of fraud, corruption or misconduct. Because substantial evidence supports the finding that these limited grounds for judicial review of a non-judicial arbitration award do not exist, Court affirm.

Michael Estrada appeals from judgment entered following a jury trial in which he was convicted of petty theft with a prior (Pen. Code, 666, 484, subd. (a)) and his admission that he suffered two prior convictions for serious or violent felonies within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a) (d) and 667, subds. (b) (i)) and served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for five years, consisting of the middle term of two years, doubled to four years pursuant to Penal Code sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1), plus one year for one prior prison term enhancement. The remaining prior prison term enhancements were stricken.
After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441. The judgment is affirmed.

Appellant appeals from the trial courts order granting a Code of Civil Procedure section 425.16 special motion to strike his complaint for declaratory relief. Court find no error and affirm.

A jury convicted Brenda Martinez as an aider and abettor in the second degree murder of Sebero Ruiz. She challenges her conviction and sentence. Court modify the judgment to credit Martinez with additional days of presentence credit and affirm the judgment as modified.

Defendant assaulted Debra P. intending to rape her. Later, out of custody from the first assault, defendant assaulted Shelly C. intending to rape her. In a court trial, defendant was convicted of two counts of assault with intent to commit rape. Sentenced to eight years in state prison, defendant appeals. Representing himself on appeal, defendant makes numerous contentions of error. We conclude his contention that he was improperly sentenced to full and consecutive terms pursuant to former Penal Code section 667.6, subdivision (d) has merit because defendant does not have the requisite prior conviction. Accordingly, Court affirm the conviction but vacate the sentence and remand for resentencing.

Two separate final judgments in two separate actions seven years apart determined that appellant Arthur Stigall is not entitled to possession of real property in Sacramento known as 2841 Albatross Way (Albatross property). Nevertheless, Stigall filed a third action seeking possession of the property. This time, respondents Eddie and Tanya Brown obtained an order declaring Stigall a vexatious litigant and requiring him to furnish security in the amount of $20,000. When Stigall failed to furnish the security, the trial court dismissed the action. Stigall appeals from the judgment of dismissal. Court affirm.