CA Unpub Decisions

Plaintiff appeals from a judgment entered after a jury trial, challenging three evidentiary rulings, the denial of its motion for nonsuit on a cross-complaint, and the trial courts determination that defendants were the prevailing parties in awarding costs.
Court conclude that the evidentiary rulings and the denial of the nonsuit, even if in error, caused no prejudice. Further, where, as here, the defendant files a cross-complaint, and neither the plaintiff nor the defendant obtains any relief, the defendant is considered the prevailing party in awarding costs. Court therefore affirm.

Appellant challenges his assault with a deadly weapon, aggravated mayhem, corporal injury to a spouse, and stalking convictions on the ground the trial court erred by refusing to allow him to retain private counsel. Court conclude the court did not err, as the trial was about to commence, and appellant had not arranged for another attorney to represent him.

Andy Martinez-Lezama appeals from a judgment entered following his no contest plea to taking a motor vehicle in possession of another, count 4 (Pen. Code, 215, subd. (a)) and kidnapping, count 11 (Pen. Code, 207, subd. (a)). As to both counts, he admitted he personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b). He was sentenced to prison for a total of 20 years, consisting of the middle term of five years, plus 10 years for the firearm enhancement, for count 4 and the middle term of one year and eight months, plus three years and four months for the firearm enhancement, for count 11.
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.

Wesley Shawn Damaso appeals a judgment after he pled no contest to possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)) following the denial of his motions to suppress evidence. Court conclude that the trial court properly denied Damaso's suppression motions because the police had reasonable grounds to conduct a patdown search. Court affirm.

Plaintiff and appellant Margherita Underhill (plaintiff) appeals from the summary judgment entered in favor of defendants and respondents Miller Childrens Hospital (MCH), Long Beach Memorial Medical Center (LBMMC), and Eliezer Nussbaum, M.D. (Dr. Nussbaum), (MCH, LBMMC and Dr. Nussbaum are referred to collectively as defendants) in plaintiffs wrongful death and survival action premised upon defendants allegedly negligent treatment and care of her son, Christian, a cystic fibrosis patient who died in February 2003. Plaintiff contends the trial court erred by excluding portions of an expert declaration submitted in opposition to the summary judgment motion, that triable issues of material fact exist as to whether defendants negligence caused Christians death, and that her survival action is not time barred.
Court affirm the judgment. The trial court did not abuse its discretion by excluding certain opinions expressed in a declaration by plaintiffs medical expert because those opinions lacked an adequate foundational basis. Plaintiff failed to present any triable issue of material fact as to whether defendants negligence proximately caused Christians death. The undisputed evidence showed that Christian had less than a 10 percent chance of surviving his last hospitalization, and that no medical intervention would have prevented him from succumbing to end stage cystic fibrosis, a fatal, noncurable disease.

Bell Cab Company, Inc. and Deuk Young Lee appeal from the judgment entered in favor of Nam Juk Kim following a jury trial in Kims action for personal injuries suffered when her hand was caught in the door of Lees taxi cab. Bell Cab and Lee argue the trial court erroneously excluded impeachment evidence they sought to introduce through their expert witness. Court affirm.

Efrain Ruben Aquino killed a stranger, Louis Silva, following an argument in the parking lot of a bar. The prosecutor sought a verdict of first degree murder. The defense argued for voluntary manslaughter, based on heat of passion and provocation. The jury returned a verdict of second degree murder and personal use of a knife. Appellant was sentenced to prison for 16 years to life.
Appellant contends: (1) The trial court should have instructed sua sponte on the theory of an unreasonable belief in the need for self-defense. (2) His trial counsel rendered constitutionally ineffective assistance, by failing to request instructions on the effect of voluntary intoxication on actual formation of the requisite mental states for murder. (3) The trial court abused its discretion by refusing to find that this was an unusual case that warranted a grant of probation.
Court find no error, and affirm.

A modification decision.

A jury convicted Salvador Rojo Miranda of first degree burglary (Pen. Code, 459), attempted forcible rape ( 664/261, subd. (a)(1)), and making criminal threats ( 422). The trial court found true allegations that he had suffered two prior serious felony convictions within the meaning of the three strikes law. ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Miranda contends that the trial court failed to exercise informed discretion in ruling on his request to dismiss one of those prior convictions for purposes of sentencing. Court affirm.

In these consolidated appeals, Chi Lam, Erlinda Koo, and Wen T. Chiang (Objectors) appeal an order approving the dismissal of two related shareholder derivative actions after the trial court approved a settlement of both actions. Objectors contend the settlement unfairly allows the plaintiffs to gain majority control of both corporations and the court approved the settlement despite a conflict of interest between the plaintiffs and the corporations whose interests they purportedly represent. The defendants refute those contentions and contend Objectors have no standing to appeal and appealed from nonappealable orders. Court conclude that the order approving the dismissals is appealable, that Objectors have standing to appeal the order, and that the settlement approval was an abuse of discretion.

Daniel Bowles appeals from the judgment entered following a jury trial in which he was convicted of lewd conduct with a child under the age of 14. He contends that the prosecutor committed prejudicial misconduct in questioning a witness, the trial court erred in permitting him to be impeached with a prior conviction, and his motion for a new trial should have been granted. Court affirm.

Appellant Khosrow Abtahi appeals from a judgment of dismissal, entered after the trial court sustained the general demurrer of the Los Angeles County Tax Collector to his second amended complaint (SAC) without leave to amend. He contends the trial court erred in finding that the SAC failed to state a cause of action, and that the court erred in considering evidence improperly included in respondents papers in support of the demurrer. We conclude, without regard to extraneous facts, that the SAC failed to state a cause of action. Further, as appellant has not shown that the SAC could be amended to state a cause of action, Court affirm the judgment of dismissal.

Appellants, Patrick Rooney et al. (Rooney), appeal from a judgment of dismissal entered after the trial court sustained, without leave to amend, Eagle Star Insurance Company's (Eagle Star) demurrer to the second amended complaint for breach of contract, insurance bad faith, and declaratory relief. The trial court ruled that the action was barred because Eagle Star's excess insurance policy excluded coverage for inverse condemnation liability. It further ruled that any claim for insurance indemnifiction was premature because the insured, County of Ventura (County), has not yet suffered an ascertainable damage. County was dismissed on the ground that the order sustaining Eagle Star's demurrer mooted the action for declaratory relief. Court affirm.

The death of Angel Quero spawned a will contest and a civil complaint for damages for elder abuse by Angel's son Michael against Angel's wife Rosalinda, her brother Edgar, and Dennis Shea, the attorney who drafted Angel's will. Michael obtained a jury verdict of $805,000 in damages against the three defendants. The trial court granted defendants' motions for a new trial on the grounds of error in jury instructions and a confusing and misleading special verdict form.
Michael filed an appeal of the orders granting a new trial. Shea filed a separate appeal asserting the court erred in granting his new trial motion when he was entitled to judgment notwithstanding the verdict. Michael's attorney filed a separate appeal from an order granting attorney fees for legal work relating to the administration of the estate. We affirm the orders of the trial court in all particulars except with respect to appellant Dennis Shea. As Court explain, Court reverse the order granting the motion for new trial entered against him and direct the trial court to enter judgment notwithstanding the verdict in his favor.