CA Unpub Decisions

A modification decision.

Kyung Ja Su filed this wrongful death action against Plaza del Sol, LLC (Plaza del Sol), Value Investments, Inc. and Victor Liong (collectively with Plaza del Sol, the Defendants) after her husband was killed in a shooting at the Defendants' shopping center, where she and her husband operated their business. The Defendants cross-claimed against Mrs. Su for express indemnity pursuant to her lease agreement with them and for declaratory relief, although their cross-claims were later dismissed by the court. At trial a jury found in Mrs. Su's favor and the trial court thereafter granted Mrs. Su's request to recover her attorney fees incurred in defending against the cross-complaint pursuant to an attorney fee provision in the lease agreement, but denied her request for fees incurred in pursuing the complaint.
Plaza del Sol and Mrs. Su both appeal the resulting judgment. Plaza del Sol contends that, as a matter of law, it had no duty to undertake security measures to protect shopping center tenants and patrons from a drive-by shooting and that there was no substantial evidence to support the jury's finding of causation. Mrs. Su contends that the superior court erred in denying her request for attorney fees incurred in prosecuting her complaint.
Court find Plaza del Sol's arguments unavailing and affirm the judgment in favor of Mrs. Su. Court conclude, however, that the superior court erred in denying Mrs. Su's request to recover her attorney fees incurred in prosecuting her complaint and reverse the judgment in that respect.

Plaintiff Sycamore Ridge Apartments, LLC (Sycamore Ridge) appeals from orders of the trial court granting the defendants' motions to strike under the anti-SLAPP law. Defendants Megan Pukahi, William H. Naumann, Christopher H. Hagen, Lisa D. Stepp, Steven M. Nunoz, and Naumann & Levine LLP (collectively Naumann defendants) and Jeffrey LaFave and LaFave & Rice (jointly LaFave defendants) filed the anti SLAPP motions in response to Sycamore Ridge's malicious prosecution action against them, arising from Pukahi's participation as a plaintiff in Gonzalez, et al. v. Sycamore Ridge Apartments LLC, et al. (Case No. GIC812933) (Gonzalez).On appeal, Sycamore Ridge contends that the trial court erred in granting the defendants' anti-SLAPP motions because Sycamore Ridge established a probability of succeeding on its malicious prosecution claims. Specifically, Sycamore Ridge asserts that the evidence establishes that there was no probable cause to support Pukahi's portion of the lawsuit and that her claims were prosecuted with malice.
Court conclude that Sycamore Ridge demonstrated a probability of prevailing on its malicious prosecution claim, and that the trial court thus erred in granting defendants' anti SLAPP motions.

Donald V. Williams entered negotiated guilty pleas of grand theft (Pen. Code, 487, subd. (a)), conspiracy ( 182, subd. (a)(1)), perjury ( 118, subd. (a)), and filing a false instrument ( 115, subd. (a)). The court sentenced him to prison for five years four months and ordered him to pay victim restitution of $69,465.39 to Christina Minnifield and $12,582.57 to Jesse Trujillo. Minnifield and Trujillo obtained judgments in the amounts owed them and writs of execution on funds held by the San Diego County Sheriff's Department that was a surplus after foreclosure of real property owned by Williams and his wife. Williams sought to exempt the funds from execution on the basis of a homestead exemption. The court denied the exemption on the ground that the funds were not exempt as a homestead.
The judgment is affirmed.

Josue Castaneda appeals from a judgment and revocation of probation, after pleading guilty to one count of committing a lewd act upon a child, which resulted in a six-year prison sentence. Castaneda appeals, contending (1) the trial court abused its discretion in finding him in violation of his probation terms, and (2) the trial court erred when it imposed, pursuant to Penal Code section 1202.4, subdivision (b), a second $600 restitution fine when it had already imposed a $200 fine at the time he was granted probation.
The judgment is modified by striking the $600 restitution fine, leaving in force the $200 restitution fine originally imposed pursuant to section 1202.4, subdivision (b), and reducing to $200 the additional restitution fine imposed and stayed pursuant to section 1202.45. As modified, the judgment is affirmed.
The trial court enter an amended abstract of judgment reflecting the reduced restitution fines and forward a certified copy to the Department of Corrections.

William J. Cleenput entered a negotiated guilty plea to unlawfully taking or driving a vehicle. (Veh. Code, 10851, subd. (a); People v. West (1970) 3 Cal.3d 595.) The court denied a motion to withdraw the guilty plea, suspended imposition of sentence, and placed Cleenput on three years' probation including a condition he serve 365 days in custody. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).) The judgment is affirmed.

In 1982 William C. (William) was committed to Patton State Hospital (Patton) after he was found not guilty by reason of insanity to criminal charges. After several attempts to transition him to an outpatient status and recommitment to Patton, the trial court, after an evidentiary hearing on August 22, 2006, extended William's commitment for a period of two years. (Pen. Code, 1026.5.)
The order is affirmed.

David R. appeals a judgment terminating his parental rights to his minor son Dustin R. under Welfare and Institutions Code section 366.26. David contends the court erred by finding Dustin adoptable on the basis of an inadequate adoption assessment report. He also contends the court lacked sufficient evidence to support its finding that Dustin was adoptable. Court affirm the judgment.

Carl Bradford entered a negotiated guilty plea to possessing cocaine base (Health & Saf. Code, 11350, subd. (a)), and admitted a prior strike (Pen. Code, 667, subd. (b)-(i), 667, 1170.12).[1] On May 9, 2005, the court suspended imposition of sentence and placed him on three years' probation pursuant to section 1210. On September 22, the court formally revoked and reinstated probation. On December 21, it again formally revoked and reinstated probation. On June 16, 2006, it revoked probation for the third time. It denied a motion to strike the prior strike and sentenced Bradford to four years in prison: double the two year middle term for possessing a controlled substance with a prior strike. Bradford contends that denying the motion to strike the prior strike was an improper sentencing choice. The judgment is affirmed.

David H. appeals following the dispositional hearing in the dependency case of his daughter, Shanda H. He contends that the juvenile court erred by ordering him to participate in the Substance Abuse Recovery Management System (SARMS) and to submit to a psychological evaluation as part of his reunification plan. Court affirm.

Defendant was convicted of 16 counts of lewd acts with a child by use of duress, in violation of Penal Code section 288, subdivision (b)(1). The offenses covered the periods from June to December 2001 (counts 13-16); January to June 2002 (counts 9-12); July to December 2002 (counts 5-8); and January to June 2003 (counts 1-4). Defendant was sentenced consecutively to a midterm sentence of six years for each offense, for a total of 96 years in prison.
On appeal, defendant contends the evidence was insufficient to allow the jury to find duress. He also contends that the trial court erred in imposing a midterm sentence instead of a low term sentence on each of the counts. The judgment is affirmed.

Barbara Notturno sued David Daniels, M.D. and San Antonio Community Hospital (SACH) for the wrongful death of her son, John Notturno. Dr. Daniels and SACH each moved for summary judgment on the ground that the action was not commenced within the one-year limitations period provided in Code of Civil Procedure section 340.5. The court granted the motions and entered judgment in their favor. Court affirm.

Defendant was convicted of carrying a loaded and unregistered firearm, in violation of Penal Code section 12031, subdivision (a)(2)(F). On appeal, he contends that the conviction was improper because he was a Nevada resident who was not required to register the firearm.
The People agree with his contention, and both parties request this court to reduce the conviction to the alleged lesser included offense of carrying a loaded firearm in a public place, a misdemeanor violation of section 12031, subdivision (a)(2)(G).
Court disagree with the reasoning of the parties, but agree that the offense is a misdemeanor. Court order the judgment modified to clarify the nature of the offense.

In 2003, respondents Kern County and Board of Supervisors of Kern County (County) approved a project proposed by respondents and real parties in interest Tejon Industrial Corp. and Tejon Ranchcorp (Tejon) to build and operate 15.5 million square feet of mixed-use development (13.6 million square feet warehouse and distribution space; 1.5 million square feet industrial/manufacturing uses; 275,000 square feet commercial uses, including two diesel fuel dispensing stations, two gasoline stations and nine restaurants), together with associated road improvements, a 3.5 megawatt gas turbine cogeneration facility and a water treatment facility. The project will be constructed on a 1,109-acre site located in southern Kern County, on the east side of Interstate 5 (I-5), approximately three miles north of the base of the Tejon Pass. This appeal followed. Appellants raise two challenges to the adequacy of the revised EIR and to the sufficiency of the evidence supporting the statement of overriding considerations and associated factual findings. First, they argue that the revised EIR failed to identify and analyze adverse impacts on air quality that might remain after implementation of the VERP and to assess whether any additional mitigation measures could reduce or ameliorate such possible residual adverse air quality impacts. Second, they contend that the revised EIR failed to identify and analyze possible adverse environmental effects resulting from designation of a portion of the project as an FTZ. Neither of these contentions is persuasive. Court affirm the order discharging the writ of mandate. The order discharging the writ of mandate is affirmed.