CA Unpub Decisions

Jacqueline Wilburn was a member of the board of directors of the Queen Villas Homeowners Association in Inglewood. Allegedly (at least according to her) the condominiums suffered a variety of construction defects and Wilburn, thinking she had special skills in the management of plaintiffs construction defect litigation, agreed to provide extraordinary services to facilitate that litigation, including selecting and communicating with counsel, and coordinating the litigation on the associations side. She was paid for her services from the association checking account, allegedly with the knowledge and at least tacit agreement of the associations property management company, TCB Property Management, which is the dba of Laura Dawson. The property management company maintained the associations checking account and checkbook.
The trial court granted the motion for summary judgment based on the indemnity clause quoted above as paragraph F under Section II, also concluding that the property managers negligence only constituted passive negligence, and further that, as pled, the damages sustained by the association were not solely the property managers fault. The association now appeals from the ensuing judgment.

Rene Madera-Font, M.D., was expelled from a general partnership, and sued for breach of the partnership agreement, breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty. A jury found in favor of the partnership and against Madera Font on all causes of action.
Madera-Font then sued his attorney for legal malpractice, claiming his attorney should also have asserted a claim for wrongful termination of employment in violation of public policy in the underlying partnership action. The trial court granted the attorneys motion for summary judgment in the legal malpractice action because Madera Font could not prove the element of causation. Court affirm.

Defendant filed a notice of appeal with this court following the judgment of conviction ordering him to prison for 18 years following his plea of guilty to attempted (unpremeditated) murder, enhanced by terms for the infliction of great bodily injury and for having a prior serious felony conviction. (See Pen. Code, 187, 664, 667, subd. (a), 12022.7, subd. (a).) Enhancements for a prior prison term and for the use of a deadly weapon were stricken for purposes of sentencing. (See Pen. Code, 667.5, subd. (b), 12022, subd. (b).) No certificate of probable cause was obtained. Thus, the appeal is limited to issues arising after entry of the plea that do not challenge its validity or involve a search or seizure. (See Pen. Code, 1237.5.) After examination of the entire record, Court find no other issue to argue. The judgment is affirmed.

Defendant appeals the judgment of conviction imposed following a jury trial. The jury convicted appellant on two counts of robbery and one count of possession of a firearm by a felon. Appellant contends the trial court abused its discretion by excluding expert testimony on the reliability of the Peoples eyewitnesses. Appellant also contends the trial court erred by admitting lay opinion testimony regarding a correlation between drug use and robbery. Court affirm.

In case number A111370, Court affirmed a juvenile court order denying additional visits and suspending telephone calls between appellant Joyce M. and her dependent daughter, Halley M. Now, appellant appeals from a subsequent order she describes as slightly different from the previous order. She makes the same arguments she made in the earlier appeal and relies primarily on evidence predating the courts previous order, which we affirmed upon concluding the juvenile court acted within its discretion. Court once again conclude there was no abuse of discretion and affirm the juvenile courts order.

Ricky Tith (Tith) appeals from a judgment entered after he pled guilty to felony assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)). He contends that his constitutional rights were violated by the imposition of the upper term of sentence, which was based on one or more aggravating factors neither found by a jury nor admitted by his plea. (See Blakely v. Washington (2004) 542 U.S. 296 (Blakely).) Court remand for resentencing.

Following the denial of her motion to suppress evidence pursuant to Penal Code section 1538.5, defendant Janet Dawn Felix entered a plea of no contest to one count of transporting methamphetamine (Health & Saf. Code, 11379, subd. (a)). In accordance with a negotiated disposition, other charges (possessing a controlled substance (Health & Saf. Code, 11377)), forging a drivers license (Pen. Code, 470a), possessing a forged drivers license (Pen. Code, 470b), and being under the influence of a controlled substance (Health & Saf. Code, 11550)) were dismissed. Imposition of sentence was suspended, and defendant was admitted to probation for three years. The sole issue presented on this timely appeal is whether defendants suppression motion was erroneously denied. Court conclude that it was not, and Court affirm.

Onassis P. appeals from a dispositional order of probation upon his admission of felony possession of marijuana for sale (Health & Saf. Code, 11359) and felony battery causing serious bodily injury (Pen. Code, 243, subd. (d)). He contends that the trial court erred in failing to exercise its discretion to designate the battery offense as either a felony or a misdemeanor as required by Welfare and Institutions Code section 702. Court affirm.

This appeal is presently before the court by way of a renewed motion for expedited dismissal of appeal filed by respondents on February 23, 2007. Opposition was filed by petitioner and appellant Julian P. Lagos (appellant) on March 12, 2007. For the reason set forth below, the motion is granted, and this appeal is hereby dismissed.

Appellants appeal from an order dismissing the complaints in their consolidated action against respondent Herbalife International, Inc. (HII) on the ground of forum non conveniens. Appellants, purportedly former directors and minority shareholders of HIIs subsidiary, Herbalife Japan (HOJ), asserted claims against HII, the majority shareholder of HOJ, based on actions that allegedly devalued appellants shares. In support of the motion to dismiss, HII raised the forum selection clause contained in a contract executed by appellants and seven other directors and former directors of HOJ. Although HII was not a party to the contract and appellants did not purport to assert any claims under the contract, the trial court was persuaded that the contract was key to resolution of appellants claims because it defined the ownership interest in HOJ shares held by appellants. Court conclude that interpretation of the contract raised, at most, an ancillary issue not founded in or intertwined with appellants underlying claims. Court therefore reverse the order of dismissal and remand for further proceedings.

Defendant appeals from the judgment entered after a jury convicted him on one count of murder, three counts of attempted murder and one count of firearm possession by a felon. Defendant contends the trial court committed reversible error by failing sua sponte to modify CALJIC No. 8.66 to specify that Tyler must have had the specific intent to kill each victim to be convicted on all three attempted murder counts; the prosecutor committed prejudicial misconduct during closing argument; the criminal street gang enhancements imposed pursuant to Penal Code section 186.22, subdivision (b), are unauthorized; and he should not have received consecutive sentences on the murder and attempted murder counts. Court modify the judgment to strike the imposition of firearm enhancements under section 12022.53, subdivision (d), on counts 3 and 4 and to reflect the imposition of firearm enhancements under section 12022.53, subdivision (c), on those counts and, as modified, affirm the judgment.

Anthony Zamora appeals a judgment after his conviction of driving under the influence with priors and driving with a blood alcohol level of .08 percent with priors (Veh. Code, 23152, subds. (a) & (b); 23550). Court conclude, among other things, that the trial court did not commit reversible error by not giving a multiple act unanimity instruction. (CALJIC No. 17.01.) Court affirm.

Defendant appeals from the judgment entered following his no contest plea to two counts of second degree commercial burglary, counts 1 and 7 (Pen. Code, 459), two counts of forgery, counts 2 and 8 (Pen. Code, 470, subd. (d)), two counts of forgery, counts 4 and 10 (Pen. Code, 484f, subd. (a)), false personation, count 3 (Pen. Code, 529), two counts of identity theft, counts 5 and 6 (Pen. Code, 530.5, subd. (a)) and one count of possession of a forged drivers license, count 9 (Pen. Code, 470b). Pursuant to his plea, he was sentenced to prison for five years, consisting of the upper term of three years for count 1and three consecutive 8 month terms for counts 3, 6 and 7. Sentences on the remaining counts were ordered stayed pursuant to Penal Code section 654. He requested a certificate of probable cause, claiming he wished to withdraw his plea based on ineffective assistance of counsel. His request was denied. The judgment is affirmed.

A jury convicted defendant Trang Dieu Luu of the second degree murder of Shazia Haq and found true various firearm allegations. The trial court sentenced defendant to a term of 40 years to life, with an award of 476 days of custody credit. Defendant contends the trial court erred when it declined to instruct on voluntary manslaughter. Court find no error because there was no substantial evidence of a killing committed in the heat of passion. Therefore, other than modifying the judgment to reflect defendants entitlement to one additional day of presentence custody credit, Court affirm.