CA Unpub Decisions

In 2002, Barry S. Jameson filed a complaint against Dr. Taddesse Desta asserting numerous claims, including breach of fiduciary duty (lack of informed consent) and professional negligence, stemming from Desta's allegedly negligent medical treatment of Jameson while Jameson was incarcerated. In three prior appeals brought by Jameson, this court reversed judgments in favor of Desta, and remanded the matter for further proceedings on Jameson's claims. (See Jameson v. Desta (2013) 215 Cal.App.4th 1144 (Jameson III), Jameson v. Desta (2009) 179 Cal.App.4th 672 (Jameson II), Jameson v. Desta (July 2, 2007, D047824) [nonpub. opn.] opn. mod. July 26, 2007 (Jameson I).)

In this appeal from the denial of a petition for resentencing under Proposition 36, Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126), appointed counsel for appellant Jose Plascencia filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the entire record, we have found no arguable error that would result in a disposition more favorable to defendant.

A jury convicted defendant Lidia Ibarra of furnishing methamphetamine. The trial court sustained three prior prison term allegations and sentenced defendant to nine years in state prison. We affirmed the conviction but reversed the prison term priors for insufficient evidence and remanded for specific additional findings as to one requirement. On remand, defendant asked the court to find two of the prior prison term allegations not true, because their underlying convictions were previously reduced to misdemeanors pursuant to section 1170.18. The trial court agreed to “hear this argument even though it’s not the subject of remittitur,” and subsequently declined to find “that the granting in [sic] the petitions under Prop 47 here precludes the application of these additional prison terms.” The trial court then found “beyond a reasonable doubt that . . . the [three] prior one-year allegations . . . are true.”

Appellant Sarah Garcia (mother) appeals the superior court’s order of July 27, 2018, granting respondent Alex Garcia’s (father) request for a change in custody to allow the parties’ two minor children to move from California to Missouri, to live with father. Mother contends the superior court abused its discretion in granting father’s move-away request without requiring a showing of a material change of circumstances justifying a change of custody. We agree and reverse.

Appellant Sarah Garcia (mother) appeals the superior court’s order of July 27, 2018, granting respondent Alex Garcia’s (father) request for a change in custody to allow the parties’ two minor children to move from California to Missouri, to live with father. Mother contends the superior court abused its discretion in granting father’s move-away request without requiring a showing of a material change of circumstances justifying a change of custody. We agree and reverse.

Petitioner Jason K. Boutros, MD, Inc. (Dr. Boutros) petitions for a writ of mandate directing the superior court to vacate its March 9, 2018 order denying his motion for relief from waiver of jury trial and to issue an order granting the motion. We issued a stay pending this court’s resolution of the petition, and an alternative writ of mandate. Because the respondent court declined to vacate its order, we issued an order to show cause why a writ of mandate should not issue. Because we agree with Dr. Boutros that neither the respondent court nor real party Saint Lukes Pasadena, LLC (Saint Lukes) identified any prejudice that amounts to a serious hardship if he is granted relief from his waiver of jury trial, we grant the petition and direct the superior court to vacate its order denying Dr. Boutros’s motion and enter a new and different order granting the motion.

Defendant appeals the trial court’s denial of his motion to quash and traverse the sealed search warrant of his home which resulted in his arrest and charges for drug dealing. We affirm.

Alberto Cornejo was convicted on two counts of lewd conduct (counts 1 and 2) upon a young girl, RD. The jury was unable to reach a verdict on four other counts of sexual molestation: a third count of lewd conduct involving RD (count 6), two counts of committing lewd conduct upon another young girl, AC (counts 3 and 4), and one count of oral copulation of RD (count 5). These four counts were later dismissed.

Plaintiffs and respondents Kyle Madison and Marjan Madison (the Madisons) believed two professional advisers—an attorney, Daniel Spielfogel (Spielfogel), and consultants retained to provide expert witness services, defendants and appellants Sanli Pastore & Hill, Inc. (SPH) and Thomas E. Pastore (collectively, Pastore)—took money that was rightfully theirs. The Madisons sued the advisers for conversion, alleging they accepted payment from a person and entity Kyle Madison had sued for fraudulently taking their money. Spielfogel and Pastore brought Code of Civil Procedure section 425.16 special motions to strike the conversion claims against them, which the trial court denied. We recently affirmed the trial court’s decision with respect to Spielfogel (Madison v. Spielfogel (July 20, 2018, B280588) [nonpub. opn.] (Madison I)), and we now consider whether there is any basis for reaching a different conclusion with respect to Pastore.

Plaintiff Vincent A. Callender appeals from a judgment of dismissal entered after the trial court sustained defendant Los Angeles Dependency Lawyers’ demurrer to Callender’s second amended complaint without leave to amend. We affirm.

In this marital dissolution action, Kevin Woods (Woods) appeals from an order denying his petition for a modification or termination of the spousal support he agreed to pay Helen Jenkins (Jenkins) in the parties’ marital settlement agreement.
On appeal, Woods makes two arguments. First, he maintains that the trial court erred by not finding that he no longer has the ability to pay spousal support. Second, Woods contends that the trial court erred because Jenkins failed to abide by a purported Gavron warning in the parties’ marital settlement agreement.
We are not persuaded by either of Woods’s arguments. Accordingly, we affirm the trial court’s order.

Defendant Juan Perez Cortez appeals from the trial court’s order revoking his probation. Defendant argues the trial court erred by revoking his probation in the absence of any evidence that he willfully violated his probation. The People respond that the prosecution was not required to show defendant acted willfully because defendant’s probation violation—his failure to successfully complete drug court—frustrated the assumptions underlying the grant of probation to him in the first place. We conclude that even if the People were correct about the law—which we do not decide here—they did not present any evidence that defendant’s violation frustrated the assumptions underlying the grant of probation. Therefore, we must reverse.

Defendant Milind Keshewbhai Desai appeals the trial court’s restitution orders awarding $1,000 to Reliable Mill Supply (Reliable) and $7,587.42 to Travelers Insurance Company (Travelers Insurance). We vacate the Travelers Insurance order and modify the Reliable order to increase the award to $8,587.42.

The trial court granted the application of Stephen Parker for a civil harassment restraining order against Darla Brown. She appeals. We affirm.