CA Unpub Decisions

Respondent Mohamad Rani Altinawi sought a restraining order against appellant Omar Salman, alleging that Salman was harassing Altinawi. The court granted a five-year restraining order. Salman appeals. We conclude that substantial evidence supports the court’s finding of harassment. However, because we find that the scope of the restraining order is unconstitutionally overbroad and restricts Salman’s right to free speech, we reverse and remand for further hearing.

Following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, Henry Perez pleaded no contest to driving with a .08 percent or greater blood alcohol content within 10 years of three other convictions for driving under the influence of alcohol and was sentenced to two years in state prison. On appeal Perez contends evidence obtained following his traffic stop—the results of field sobriety and chemical tests and Perez’s admission to California Highway Patrol Officer Jason Green that he had consumed “two or three beers”—was the fruit of an unlawful detention and should have been suppressed. We affirm.

Hamilton Court, LLC and 3650 Olympic, L.P. (collectively, Hamilton) appeal from the trial court’s order awarding attorney fees in the amount of $95,215.30 and costs of $10,443.74 to Suk E. Cho and Un S. Cho (collectively Cho). The trial court determined that Code of Civil Procedure section 1717, subdivision (b)(2) (section 1717(b)(2)) precluded an award of attorney fees on Cho’s contract claims because the action had been dismissed pursuant to the parties’ settlement. However, noting this statutory bar applies only to contract claims, the trial court concluded Cho was entitled to attorney fees on his tort claims under the attorney fee provision of the parties’ agreement. Because the narrow scope of the attorney fee provision only authorizes an award based on contract claims, and section 1717(b)(2) bars an award under the circumstances, we reverse the order for attorney fees.

A jury convicted Tyrrell Burris of multiple crimes related to his assault of two women in their homes. On appeal he contends the prosecutor engaged in prejudicial misconduct during closing argument, his lawyer’s failure to object to many of the prosecutor’s misstatements deprived him of the effective assistance of counsel, the evidence is insufficient to support his conviction for aggravated kidnapping, he improperly suffered convictions for different statements of the same offense and it was error to order he pay restitution to one of his two victims. We agree two of Burris’s burglary convictions must be dismissed as duplicative and the restitution order was imposed in error. In all other respects we affirm the judgment.

Plaintiff and cross-defendant Julie Ting (Ting) appeals from the trial court’s judgment entered in favor of her former attorney, Steven P. Chang (Chang), who is one of five defendants and a cross-complainant in a legal malpractice action brought by Ting. Specifically, Ting challenges the court’s pretrial ruling that Chang could not have raised a usury defense on Ting’s behalf in a prior lawsuit against one of Ting’s former clients. Because Ting has not supplied an adequate record to review her claims of error on appeal, we affirm the court’s judgment.

In this appeal, plaintiff Market Lofts Community Association (HOA), “the homeowner’s association for the condominium owners at a mixed-use upscale development called Market Lofts,” (Market Lofts Community Assn. v. 9th Street Market Lofts, LLC (2014) 222 Cal.App.4th 924, 927 (Market Lofts)) challenges the summary judgment entered against it and in favor of defendants. As set forth in the HOA’s opening brief, the “linchpin” of this litigation is the Parking License Agreement (PLA) between 9th Street Market Lofts, LLC, and CIM/8th & Hope, LLC. According to the HOA, the PLA required 9th Street to assign to the HOA the right to fee-free parking in perpetuity. According to defendants, only 9th Street was granted fee-free parking during construction; 9th Street and CIM always intended to charge the homeowners for parking once the project was completed and units were sold.

Defendant and appellant Carolee Pimentel, as Successor Trustee of the Axline Trust (Pimentel) appeals from an order denying her petition to compel arbitration. Because we agree with the trial court that Pimentel waived the right to compel arbitration against plaintiffs and respondents, we affirm the order.

A jury convicted Arturo Lopez of second degree murder, conspiracy to destroy evidence, offering false evidence and three counts of possession of a firearm by a felon. On appeal Lopez principally argues his murder conviction must be reversed because the trial court improperly instructed the jury he could be convicted on a theory of felony murder and the evidence is insufficient to support his conviction for offering false evidence. We agree with Lopez, reverse his convictions for murder and offering false evidence, affirm the convictions for the other four offenses, which Lopez does not challenge on appeal, and remand for further proceedings.

Rhett E. Edwards was convicted of transportation of and possession for sale of a controlled substance, methamphetamine, and false personation. Edwards admitted serving prison terms for prior felony offenses within the meaning of Penal Code section 667.5, subdivision (b), and consequently his sentence was enhanced by seven one-year terms. After passage of Proposition 47, the Safe Neighborhoods and Schools Act, Edwards successfully petitioned to have four of those seven prior felonies designated as misdemeanors. He then moved in the trial court for resentencing in the instant matter, arguing that four of the section 667.5, subdivision (b) enhancements were invalid because the designation of the prior felonies as misdemeanors negated an element of the section 667.5 enhancements. The trial court denied his request, and we affirmed the trial court’s order.

Defendant Nickolas Norman Le Bleu appeals from a judgment entered after he pled no contest to two weapons offenses. Although defendant was placed on probation and imposition of sentence was suspended, he contends the trial court erred in considering certain facts neither admitted nor found by a jury in denying his motion to reduce the two “wobbler” offenses to misdemeanors. We shall affirm the judgment.

D.B. tested positive for methamphetamine at birth and was removed from her parents’ care before she left the hospital. Both parents were chronic drug users. Neither actively engaged in services for the first four months of D.B.’s removal but engaged in services, including substance abuse treatment, for the following six months. The court ultimately terminated services because there was no substantial probability D.B. could be returned to their care by the 12-month review, then two months away. Parents petitioned for D.B.’s return or additional services. The court denied the petitions and terminated parental rights. We affirm.

Petitioner Vanessa R. (mother) seeks an extraordinary writ from the juvenile court’s orders terminating reunification services at a 12-month review hearing and setting a Welfare and Institutions Code section 366.26 hearing as to her three youngest children, now ranging in age from three to five years (the children). Mother contends the juvenile court erred in finding the Stanislaus County Community Services Agency (agency) provided her reasonable services. We deny the petition.

Petitioner Thomas G. (father) seeks an extraordinary writ from the juvenile court’s orders terminating reunification services at a 12-month review hearing and setting a Welfare and Institutions Code section 366.26 hearing as to his three youngest children, now ranging in age from three to five years (the children). Father contends the juvenile court erred in finding the Stanislaus County Community Services Agency (agency) provided him reasonable services. We deny the petition.

Appellant Amanda H. appeals from the juvenile court’s orders terminating her parental rights as to her now two-year-old daughter, Addison K., under Welfare and Institutions Code section 366.26. Pursuant to California Rules of Court, rule 8.200(a)(5), Steven K., Addison’s father, joins and adopts by reference the argument made by Amanda in her appeal of the same order. He contends that if this court reverses the termination of Amanda’s parental rights, we must also reverse the termination of his own. Amanda argues the juvenile court erred by failing to find the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) applied to her. We affirm.