CA Unpub Decisions

The law firm of Rosen, Bien & Asaro, LLP (RB&A) sought and obtained summary judgment on a cross-complaint brought by its former clients, Lewis and Mary diSibio (the diSibios) alleging causes of action for equitable indemnity and constructive trust. Court affirm the summary judgment because the diSibios failed to establish any triable issue of material fact, and RB&A is entitled to summary judgment as a matter of law.

The above-captioned actions both arise from a lawsuit brought by appellant Erlinda Flores (Flores) against respondent Griffith Laboratories U.S.A., Inc. (Griffith). In 1990, Flores, then represented by counsel, sued Griffith for wrongful termination and intentional infliction of emotional distress regarding her termination following her exposure to toluene while she worked at Griffith in 1989. The parties resolved the case, entering into a settlement agreement. Acting in propria persona, Flores brought a new action against Griffith in 2005, asserting that she had newly discovered evidence regarding the same toluene exposure in 1989. She also brought an action in propria persona against Christina Grace Cordoza (Cordoza), an attorney for Griffith in the 1990 case, alleging professional negligence and concealment of evidence of Floress medical records. Flores appealed in both cases after the trial court sustained demurrers without leave to amend to both complaints, and entered judgments of dismissal. On our own motion, Court consolidate the appeals, and affirm the judgments in both cases.

A jury found defendant Saprina Lanise Fletcher guilty of second degree robbery (Pen. Code, 211/212.5)[1] and with being a felon in possession of a concealed firearm ( 12025, subds. (a) & (b)(1)). The jury also found true allegations defendant personally had used a firearm in the commission of the robbery ( 12022.53, subd. (b); 12022.5, subd. (a)(1)). The court sentenced defendant to a term of 13 years in state prison. Defendant appeals, claiming Wheeler/Batson error. (People v. Wheeler (1978) 22 Cal.3d 258, 265 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 94 (Batson).) Court affirm.

This case raises issues of intersecting equitable and legal claims concerning a law firms long-term, multi-million dollar lease of office space and an unfulfilled contractual promise of access-controlled parking.

Plaintiff, the law firm of Weil, Gotshal & Manges LLP, entered into a written long-term lease agreement with the corporate predecessor of defendants, CA-Towers @ Shores Center, L.P. et al., for office space in Silicon Valley. The lease provided for access-controlled surface parking that defendants failed to provide. Plaintiff sued defendants for rescission, fraud, breach of contract, and reformation. After a bench trial, the trial court awarded damages for breach of contract and reformed the contract to reflect the true intent of the parties regarding parking. But the court found that no fraud had occurred and denied plaintiff rescission. The court also denied each sides request for attorneys fees.

Plaintiff contends it was denied its right to jury trial on its fraud claim, and that it should have been considered the prevailing party and awarded attorneys fees. Defendants cross-appeal and contend that the trial court erroneously admitted parol evidence to interpret the lease terms, and that they should have been considered the prevailing parties and awarded attorneys fees. Court reject all contentions and affirm.

This is an appeal from a pretrial order issued in a marital dissolution case. Respondent Stephen Lockhart has filed a motion to dismiss this appeal contending that appellant Nina Ringgold has purported to appeal from a nonappealable order. Court agree that this latest appeal must be dismissed as it clearly arises from a nonfinal, interlocutory order.

Jonathan Harlen LaMons, appearing in propria persona, appeals from an adverse judgment entered on his complaint for legal malpractice against Sanford Svetcov, who was briefly LaMonss former attorney in a federal habeas corpus appeal. The trial court granted Svetcovs motion for judgment on the pleadings on the ground that LaMons could not state a claim for legal malpractice without first establishing his actual innocence in a postconviction judicial proceeding. LaMons contends that the actual innocence requirement is not applicable to a malpractice action arising out of negligent legal representation in habeas corpus proceedings. Court disagree and affirm the judgment.

Appellant James S. contends that the trial court erred by entering a commitment order that includes a provision allowing the county probation department to decide whether to place appellant in juvenile hall for up to 120 days, without a further hearing or order of the court. The People concede error in this respect. Court therefore remand to the trial court with instructions to strike this improper provision from the juvenile courts order.

David Schachter did not meekly accept being a victim of crime. When his laptop computer was snatched while he waited for a bus, he immediately began pursuing the thief and saw him enter a waiting car. Schachter grabbed the cars door in an attempt to prevent the thiefs escape, and was dragged half a block before letting go as the car accelerated. Although Schacters efforts to regain possession of his property were not successful, they were observed, and with the help of bystanders, and the prompt intervention by the police, the thief was apprehended.

The juvenile court concluded that appellant Kevin W. was the thief, and that in the circumstances surrounding his taking of Schachters computer he had committed second degree robbery (Pen. Code, 211). The court further concluded that Schachter was also the victim of assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) for the injuries suffered falling from the car. Appellant was declared a ward of the court, and committed to the probation department for an out of home placement.

Appellant contends that the evidence is insufficient to establish that he committed either the robbery or the assault. He also contends the matter must be remanded because the juvenile court did not comply with its statutory duty to exercise its discretion and determine whether the assault would be treated as a felony or a misdemeanor. We conclude that there is substantial evidence that appellant committed robbery and assault. We further conclude that a remand is not necessary because the record shows that the juvenile court was aware of its discretion and exercised it by treating the assault as a felony. In light of these conclusions, Court affirm.

Defendant and appellant Christopher J. Bynum contends the 4 year, 8 month sentence imposed following his guilty-plea convictions for petty theft with a prior (Penal Code section 666 ), inflicting corporeal injury upon his spouse (section 273.5), and ignoring a restraining order (section 166, subdivision (c)(1)), violates his Sixth Amendment right to a jury trial. Court affirm.

Don Quillin pled no contest to the felony of failing to register as a sex offender pursuant to Penal Code section 290, subdivision (a)(1)(D)[1] and admitted having a prior strike conviction ( 1170.12). Quillin was sentenced to 32 months in state prison. The sole issue on appeal is whether the trial court erred by denying Quillins motion to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Finding no such error, Court affirm the judgment.

After respondent Andy Siu obtained a $221,088.46 default judgment, appellant M&M Construction moved to set aside that default judgment. The trial court denied the motion to set aside, but modified the judgment to reduce the principal amount to $151,742.72. On appeal, M&M contends that the default judgment must be set aside as void because it was not limited to the type and amount demanded in the complaint. As we find that the trial court failed to properly recalculate the amount of prejudgment interest when it reduced the underlying award, Court reverse that part of the judgment and remand to the trial court for further modification, but otherwise affirm the judgment.

Parallax Design and Construction, Inc. (Parallax) and Parallaxs officers, George Perrenod, Jr., Stan Thompson, and Martin Romo (collectively, Parallaxs officers) obtained directors and officers (D & O) insurance from Certain Underwriters at Lloyds London (Underwriters). Perrenods former employer sued Parallax and Parallaxs officers and they tendered the lawsuit to Underwriters. Underwriters refused to provide a defense for them in the lawsuit, and Parallax and its officers sued Underwriters for breach of contract and breach of the covenant of good faith and fair dealing.

The trial court granted Underwriters motion for summary judgment against Parallax on the basis that the exclusionary clause in the insurance policy barred Parallaxs claim. The court denied the motion as to Parallaxs officers. Parallax appealed.

Subsequently, the trial court granted Underwriters motion for judgment on the pleadings against Parallaxs officers. It found that they suffered no damages in their breach of contract claim because Parallax paid the settlement and costs in connection with the lawsuit. Parallaxs officers appealed.

Court consolidated the appeals of Parallax and Parallaxs officers. Court affirm the judgment as to Parallax, as Court conclude the exclusionary clause in the insurance policy applied to Parallaxs claim. Court reverse the judgment as to Parallaxs officers. The question whether Parallaxs officers suffered any damages is a factual issue and was not properly decided by judgment on the pleadings.

This is an appeal from the juvenile courts denial of a request by appellant Sandra L. (mother) for a contested hearing on the issue of her visitation with her son, Dominic C. Mother contends the juvenile court, in denying her request, violated her rights to due process, abused its discretion, and improperly delegated judicial authority to respondent Alameda County Social Services Agency. Court affirm.

This appeal is the culmination of a protracted custody dispute between Jennifer Englehart and Justin Graham, mother and father of Allison, who is now four years old. Although the record reveals profound concerns over the expert testimony that was received at trial, the custody arrangement must be affirmed because it is nevertheless supported by substantial evidence. However, the child support order cannot be reconciled with the disparate incomes of the parties and must be remanded for reconsideration.