CA Unpub Decisions

This appeal returns to us after remand from the California Supreme Court for reconsideration in light of that court’s recent opinion in People v. Buycks (2018) 5 Cal.5th 857. In those three consolidated cases our Supreme Court addressed the retroactive effect of Proposition 47, the Safe Neighborhoods and Schools Act. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) Prop. 47, § 14.) Proposition 47 reclassified certain felonies and wobblers as misdemeanors and added Penal Code section 1170.18 to provide a mechanism to allow offenders to petition to have felony convictions resentenced or redesignated as misdemeanors.

Defendant Loyce Weaver fired a gun multiple times toward a group of people in a parking lot, killing one of them, and was convicted of first degree murder. Defendant contends there was insufficient evidence to support his conviction and that the jury was instructed incorrectly. He also contends the trial court erred by not allowing him to present evidence about gangs to bolster his testimony that he shot to defend against a perceived attack by gang members. He alternatively argues the case should be remanded for resentencing because the enhancement imposed for using a firearm is no longer mandatory after a recent statutory amendment. We find no error but will remand for resentencing to allow the trial court to exercise its discretion as to the firearm enhancement.

Appellant Fang Xia appeals the trial court’s order granting respondent Park Townsend Homeowners’ Association’s (Park Townsend) motion to enforce a settlement agreement under Code of Civil Procedure section 664.6. In the same order, the court denied Xia’s competing motion to enforce a settlement agreement. At dispute is whether the terms of the settlement agreement required Park Townsend to remove all plumbing from Xia’s property, located at 55 Devine Street (55 Devine), or if Park Townsend was required to remove only the water backflow testing system. The trial court found the settlement agreement mandated removal of only the water backflow testing system. As we explain, we agree with the trial court’s conclusion and affirm the judgment.

In this dispute involving feuding members of a homeowners association, plaintiff Evan Chemers appeals from the judgment entered after the trial court granted defendants Quail Hill Community Association (Quail Hill), Neema Aghamohammadi, Albert Ng, Himansha Surti, Bob Dougherty, and Joe Craciun’s (collectively, the moving defendants) anti-SLAPP motion as to six of Chemers’s eight causes of action. As to the claims alleged against Quail Hill and Craciun for breach of contract, violation of Civil Code section 5850 et seq., and for two counts of declaratory relief, based on the analytical framework set out by the California Supreme Court in Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 (Park), we conclude the trial court erred by granting the anti-SLAPP motion. None of those four causes of action arose out of protected activity—whether speech or petitioning activity—within the meaning of Code of Civil Procedure section 425.16.

Defendant Advantage Sales & Marketing, LLC (Advantage) appeals from the trial court’s order denying its motion to compel arbitration of the employment-related claims of its former employee, plaintiff Michelle Wallace. Advantage produced evidence that when Wallace began her employment with Advantage, she had electronically signed a binding arbitration agreement, along with several other documents,. Wallace filed a declaration in support of her opposition to the motion to compel arbitration in which she categorically denied ever seeing, much less signing, the arbitration agreement. The trial court concluded that its ruling on the motion would hinge on the court’s credibility determination as to whether Wallace electronically signed the document or not, and scheduled an evidentiary hearing to explore that credibility issue. After the hearing, the court denied the motion, having found credible Wallace’s testimony she never signed the arbitration agreement.

YouTube, LLC (YouTube) suspended the channel registered by Gregory Lincoln Kinney. More than two years later, Kinney sued YouTube, alleging causes of action sounding in tort and contract. The trial court granted YouTube’s motion for summary adjudication on the ground all contract and tort claims were barred by the one year statute of limitations contained in YouTube’s Terms of Service, which Kinney had accepted when he initially registered with YouTube. The trial court also sustained a demurrer, without leave to amend, to Kinney’s cause of action that YouTube had committed unfair business practices, in violation of Business and Professions Code section 17200 (section 17200).

Christine Grabiel appeals from an order quashing service of her petition for dissolution of marriage on her husband, Steven Grabiel. She contends the court erred because Steven made no showing that the court lacked personal jurisdiction over him, which is the sole basis for a motion to quash service of process. Rather, Steven’s motion was based on the existence of a forum selection clause in the parties’ prenuptial agreement—a clause which might justify an order dismissing or staying the action on the basis of forum non conveniens, but does not support an order quashing service.
Christine is correct, and we consequently reverse the order.

Appeal from a judgment of the Superior Court of Orange County, Denise de Bellefeuille, Judge. (Retired judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part, and remanded with directions for resentencing.

Appellant Hubert Daniel appeals the entry of judgment and dismissal of his complaint based on an alleged settlement of pending litigation with respondents BP West Coast Products (BP West Coast) and Atlantic Richfield Company (collectively BP). As he did in the court below, Daniel contends on appeal that he did not authorize the alleged settlement and, further, that there is no final, enforceable agreement between the parties.
As we shall explain, we do not agree that the parties entered a final, binding settlement agreement upon which judgment could be entered and Daniel’s complaint dismissed. Accordingly, we reverse and remand for further proceedings consistent with this opinion. Because we reverse on grounds that Daniel did not enter into an enforceable agreement, we do not reach the merits of the trial court’s holding that Daniel’s attorney had the requisite authority to bind him to a settlement.

Appellant Adam Hill was charged with the following six counts: furnishing a controlled substance to a minor (Health & Saf. Code, § 11380, subd. (a) (count 1)), possession of methamphetamine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a) (count 2)), possession of methamphetamine, a felony (Health & Saf. Code, § 11377, subd. (a) (count 3)), felon in possession of a firearm, a .45-caliber semiautomatic handgun and a 12-gauge shotgun (Pen. Code, § 29800, subd. (a)(1) (count 4)), possession of ammunition after a felony conviction (§ 30305, subd. (a)(1) (count 5)), and misdemeanor false imprisonment of a minor (§ 236 (count 6)). It was further alleged as to counts 1 through 5 that Hill had previously been convicted of and served a prior prison term under section 667.5, subdivision (b), for a crime committed on June 10, 2003.

On March 1, 2016, a felony complaint charged defendant and appellant Gene Trujillo II (defendant) with making criminal threats, a felony, under Penal Code section 422, subdivision (a) (count 1); stalking, a felony, under Penal Code section 646.9, subdivision (b) (count 2); injuring a spouse or cohabitant, a felony, under Penal Code section 273.5, subdivision (a) (count 3); possessing a controlled substance, a misdemeanor, under Health and Safety code section 11350 (count 4); and possessing marijuana, an infraction, under Health and Safety Code section 11357, subdivision (b) (count 5).
On August 25, 2016, as part of a negotiated plea agreement, defendant pled no contest to count 3, injuring a spouse or cohabitant. Thereafter, the court dismissed the remaining charges and placed defendant on supervised probation for three years, subject to various terms and conditions.

Defendant, Joseph Robert Gentile, Jr., was charged with first degree murder (Pen. Code, § 187, subd. (a)), in connection with the beating death of Guillermo Saavedra. A jury convicted him of the murder but found untrue an allegation that he used a deadly or dangerous weapon. Defendant was sentenced to 25 years to life, and the prosecution dismissed an allegation that he had a prior conviction for which he had served a prison term. (§ 667.5, subd. (b).) This is his second appeal.

Plaintiff and appellant, Bijan Hakimian, appeals from the May 5, 2016, orders denying his requests for civil harassment restraining orders against his neighbors, defendants and respondents, Rex Beasley and Ellen Miranda Berkowitz. (Code Civ. Proc., § 527.6.) We affirm the orders denying the requests.
As we explain, plaintiff improperly sought to adjudicate a real property dispute between himself and defendants by way of his requests for the civil harassment restraining orders. He claimed he had an historical easement over an old roadway that crossed defendants’ property in order to access his property, and he sought to enjoin defendants from destroying or otherwise interfering with his and others’ use of the old roadway. Defendants had blocked the old roadway and built a new roadway for plaintiff and others to use, but plaintiff was unsatisfied with the new roadway because he believed it was on lower ground and was prone to flooding because it was near a creek.

M.P. (Mother) appeals from two of the juvenile court's orders: (1) an order denying her motion under Welfare and Institutions Code section 388 (section 388 motion) to modify prior orders placing her daughters G.P. and Krista P. (together, the girls) in foster care and setting a permanency planning hearing, and (2) an order terminating her parental rights under section 366.26. Mother claims the juvenile court erred in: (1) failing to set an evidentiary hearing on her section 388 motion; (2) finding that G.P. was generally adoptable; (3) finding the beneficial relationship exception to termination of parental rights did not apply (§ 366.26, subd. (c)(1)(B)(i)); and (4) finding the child-objection exception to termination of parental rights did not apply (§ 366.26, subd. (c)(1)(B)(ii)). Mother also asserts the girls maintain a bonded sibling relationship and must be adopted (or not) together. We conclude the juvenile court did not err on any asserted ground and accordingly, aff