CA Unpub Decisions

In July of 2015, plaintiff sued defendant for assault and battery. In November of that year, defendant commenced discovery, including requests that plaintiff admit the truth of 10 statements. Plaintiff failed to respond in a timely fashion. In March of 2017, defendant moved for “An Order That The Truth of Matters Specified in Defendant’s Requests for Admissions Be Admitted.” In April, defendant’s motion was granted. Plaintiff’s motion to set aside that decision was denied on May 10. On May 12, following a bench trial, a judgment for defendant was entered. Plaintiff’s new trial motion was denied on July 5, and five days later, plaintiff filed a notice of appeal.

Plaintiffs Thomas Borges and Rhonda Borges (when referred to collectively, appellants) appeal from a judgment of dismissal entered after the trial court sustained a demurrer to their second amended complaint without leave to amend. We affirm.

William E. Kennedy (Kennedy) owned and managed Weeks Street, LLC (Weeks) which built single family homes in East Palo Alto (property). Weeks obtained a construction loan from First National Bank of Northern California, N.A. (Bank) which Kennedy guaranteed. Weeks entered into a construction contract with Nexgen Builders, Inc. (Nexgen) to develop the property. Weeks also obtained a loan from Suraj P. Puri and Pravin N. Patel (Puri/Patel) secured by a trust deed on the property, subordinate to Bank’s lien; later Kennedy acquired a 30% interest in the Puri/Patel loan. After sustaining construction challenges, Weeks filed for Chapter 11 protection in the United States Bankruptcy Court. (11 U.S.C. § 1101 et seq.) Weeks sued Nexgen and Bank for alleged contract breaches and other claims (lawsuit).

Appellants Isaiah Washington and Tiara Arnold (appellants) were convicted of two counts of murder and one count of attempted murder. On June 12, 2018, this court affirmed the judgment as to Washington but concluded the matter had to be remanded for the trial court to exercise its discretion regarding whether to strike three firearm enhancements imposed on Arnold. Both appellants filed petitions for review in the California Supreme Court

Defendant Luis Alberto Munoz admitted probation violations. The trial court imposed a two-year sentence. On appeal, defendant’s counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We sent a letter to defendant notifying him of his right to submit a written argument on his own behalf on appeal, which he has done.
As required by People v. Kelly (2006) 40 Cal.4th 106, 110, we will provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.” We will further include information about aspects of the trial court proceedings that might become relevant in future proceedings. (Ibid.) And we discuss defendant’s “contentions and the reasons that they fail . . . .” (Id. at p. 120.)

Defendant Tony Van Tran pleaded no contest to possession for sale of cocaine (Health & Saf. Code § 11351). The court placed him on probation for a term of three years, and ordered him to serve 364 days in county jail.
On appeal, Tran’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that raises no issue. We notified Tran of his right to submit written argument on this own behalf within 30 days. The 30-day period has elapsed and we have not received written argument from Tran.
Pursuant to Wende, we have reviewed the entire record and find that there is no arguable issue on appeal. We affirm the judgment.

In January 2016, David Turner, proceeding as a self-represented litigant, sued Dr. Thomas J. Welle, D.O. and Palo Alto Medical Foundation Group, Inc. (“Palo Alto”), for violation of the Americans With Disability Act (“ADA”), and medical malpractice associated with treatment of a shoulder condition. The trial court sustained Welle’s and Palo Alto’s demurrer to the second amended complaint without leave to amend on the grounds that it fails to allege facts sufficient to state a cause of action, it is uncertain, and the claims are time barred by the one-year statute of limitations. (Code of Civil Procedure § 340.5.) We affirm the judgment.

Plaintiff Lisa Modawell and her sister, defendant Courtney Depew, were allegedly beneficiaries of their grandmother’s trusts. Depew was also allegedly the trustee of the trusts. Modawell filed a petition in the probate court for breach of trust against Depew, and Depew filed an answer. The court treated Depew’s answer as a demurrer, sustained the demurrer on the grounds that Modawell’s petition was barred by the statute of limitations and by the doctrine of laches, and filed a judgment dismissing Modawell’s petition with prejudice.
On appeal, we understand Modawell to contend that the judgment should be reversed because the probate court erred by: (1) having a court staff member contact Depew after she failed to appear for several hearings, (2) treating Depew’s answer as a demurrer, and (3) sustaining the demurrer based on the statute of limitations and the doctrine of laches.
For reasons that we will explain, we will reverse the judgment.

Plaintiff Great Oaks Water Company (Great Oaks), a water retailer, brought this action challenging groundwater charges imposed on water it extracts from wells on its property. The power to impose such charges is vested in defendant Santa Clara Valley Water District (District), under the Santa Clara Valley Water District Act (District Act or Act) (West’s Ann. Wat.—Appen. (1999 ed.) ch. 60, p. 354 et seq., West’s Ann. Wat.—Appen. (2017 supp.) ch. 60, p. 11 et seq.). Among the District’s major responsibilities is preventing depletion of the aquifers from which Great Oaks extracts the water it sells. The trial court awarded a complete refund of the charges paid by Great Oaks, or in the alternative a partial refund, on the grounds that the charge violated the provisions of both article XIII D of the California Constitution (article XIII D) and the District Act. Article XIII D imposes procedural and substantive constraints on fees and charges imposed by local public entities.

Defendant James Elwyn Fraser (Defendant) appealed from a postjudgment order clarifying that his convictions on four counts of first degree burglary (counts 10, 14, 16, and 18) were to be considered violent felonies under Penal Code section 667.5, subdivision (c)(21) (undesignated code sections are to the Penal Code). The consequence of that clarification is that Defendant is subject to the 15 percent worktime credit limitation of section 2933.1.

A jury convicted appellant Kenneth D. Azlin of battery of a nonconfined person (Pen. Code, § 4501.5) and found true allegations that Azlin had a prior conviction within the meaning of the “Three Strikes” law. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

A jury found Balzer Louis Bergman III guilty of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), and one count of assault by means of force likely to cause great bodily injury (force-likely assault) (§ 245, subd. (a)(4); count 2). With respect to both counts, the jury further made a true finding that Bergman personally inflicted great bodily injury. (§ 12022.7, subd. (a).) Bergman admitted he suffered a serious felony prior (§ 667, subd. (a)), a strike prior (§§ 667, subs. (c), (e)(1), 1170.12, subd. (c)(1)), and a prison prior (§ 667.5, subd. (b)). The trial court sentenced Bergman to prison for a term of 12 years.

Armando Mendez contends the imposition of separate sentences for his convictions for assault with a deadly weapon and burglary with intent to commit assault with a deadly weapon violates Penal Code section 654, which precludes multiple punishments for a single act or an indivisible course of conduct. We agree. Because defendant committed the burglary and the assault offenses with the same intent and objective of assaulting the victim, section 654 precludes multiple punishments for these offenses. We therefore affirm the judgment of conviction, reverse the sentence, and remand for resentencing.

These two appeals by two limited partners, plaintiffs and appellants Kevin Pifer and Steven Pifer ("Appellants"), arise out of rulings on their amended cross-complaint, which challenged the administration of a restated family limited partnership, Pifer Property Holdings LP (the "partnership"). Demurrers brought by defendant and respondent Stacy Kate Pifer ("Kate") and her affiliated entity, defendant and respondent Pifer LLC, were sustained without leave to amend. A judgment on the pleadings brought by defendant and respondent Phoebe Moffatt (Moffatt) was granted without leave to amend. On appeal, Appellants argue the court erred as a matter of law in finding their 13 derivative and/or direct causes of action are defective, and in an exercise of discretion, it should have granted them leave to amend.