CA Unpub Decisions

Plaintiffs Jaclynn Jarrett, Marvin Scott Jarrett, and Creator LLC (collectively, plaintiffs) appeal from judgments entered against them after the trial court granted summary judgment motions in favor of Donald Hellinger, Jami Pearlman, and Nylon Holding, Inc. (collectively, the Holding defendants), and Marc Luzzatto, Diversis Management, LLC, and Nylon Media, Inc. (collectively, the Media defendants) in this action arising from the sale of Nylon Holding’s assets to Nylon Media. Plaintiff Creator, which the Jarretts owned, was a shareholder of Nylon Holding. Plaintiffs maintain the asset sale was unlawful, unfair, and violated a contract.

Kimberly Pemberton filed an amendment to her complaint for strict liability to substitute a named defendant for “DOE 1.” That party, Compass Orthopedic Technologies & Products, Inc. (Compass) moved to strike Pemberton’s amendment and to quash service of the complaint on the ground that Pemberton was not genuinely ignorant of Compass, and thus could not avail herself of Code of Civil Procedure Section 474, which allows a plaintiff who is ignorant of a defendant to designate the defendant by a fictitious name. The trial court agreed with Compass and granted the motions. We now reverse.

N.Y. was declared a ward of the court after pleading no contest to second-degree robbery. On appeal, he contends the juvenile court abused its discretion in deciding to remove him from his family home and place him in a twelve-month program at a juvenile ranch facility. We affirm.

Omar J. Breedlove appeals from convictions of robbery and inflicting injury on an elder. He contends the evidence was insufficient to support the robbery conviction and the jury instructions on the elder abuse count improperly lightened the prosecution’s burden of proof. We affirm.

Appellant Tom Lan, appearing in propria persona in this dissolution proceeding, pursues two appeals from orders entered, respectively, July 1, 2016 and October 21, 2016. The July 1, 2016 order is an order after hearing setting child support and directing appellant to provide health insurance. The October 21, 2016 order is an order rejecting appellant’s proposed form of judgment.

Plaintiffs filed a wrongful death lawsuit against several defendants, including Mega R.V. Corporation (Mega). Following a jury trial, the court entered judgment for Mega and denied plaintiffs’ new trial motion. On appeal, plaintiffs contend the court erred by denying their new trial motion. We affirm.

Plaintiff Richard Kohn appeals from a denial of injunctive and declaratory relief in the Superior Court of Marin County to stop the defendants—the California Coastal Commission (the Commission), the County of Marin, and the Marin County Community Development Agency—from considering regulatory takings issues when evaluating and granting coastal development permits (CDPs), among other claims. The court denied relief and concluded the Commission rightfully exercised its authority to consider takings issues. Kohn now appeals on grounds similar to those stated in his suit in superior court. We affirm.

Appellant Tom Lan, appearing in propria persona in this dissolution proceeding, pursues two appeals from orders entered, respectively, August 24, 2015 and December 3, 2015. We consolidated the appeals for purposes of oral argument and decision.
Both parties are unrepresented. Respondent Jennifer Sun appeared in propria persona in the family court proceedings from which these appeals are taken, but despite notice of default in filing a responding brief on appeal , she failed to file any such brief.

We also agree that the prohibition against multiple punishments (Pen. Code, §§ 654; 422.6, subd. (d)) applies, since the assault and hate crime offenses arose from the same act, which consisted of Mende encouraging the assault by shouting for codefendant to “kill” the “fag.” (See People v. Jones (2012) 54 Cal.4th 350, 358 [“[Penal Code] [s]ection 654 prohibits multiple punishment for a single physical act that violates different provisions of law”]; see also Pen. Code, § 422.6, subd. (d) [providing that “an act or omission punishable in different ways by this section and other provisions of law shall not be punished under more than one provision, and the penalty to be imposed shall be determined as set forth in [Penal Code] [s]ection 654”].)

Appellants are an unincorporated association (Committee Supporting Cupertino Citizens’ Sensible Growth Initiative) and three voters who reside in the City of Cupertino (Steven Scharf, Xiangchen Xu, and Govind Tatachari). In June 2016, Appellants petitioned for a writ of mandate to require Respondents City of Cupertino and its City Council to amend a ballot question on the ground that the wording of the question was false, misleading, and unlawful. The trial court denied the petition, and the election proceeded in November 2016 with the version of the ballot question that Appellants had challenged.

A jury convicted appellant of failure to appear while released on bail (Pen. Code, § 1320.5; count 1) and found appellant committed the offense while released on bail (§ 12022.1). On appeal, appellant contends his section 1320.5 failure to appear conviction cannot be enhanced by the on-bail enhancement. Recognizing our high court reached the opposite conclusion in People v. Walker (2002) 29 Cal.4th 577 (Walker), we affirm.

Tyler Wayne Sherwood (plaintiff) is the surviving spouse of Alexandra Sherwood, who committed suicide at the age of 21. Plaintiff sued Kern Valley Healthcare District (defendant) for wrongful death on a theory of medical negligence. Defendant, a public entity, successfully moved for summary judgment based on plaintiff’s noncompliance with procedural requirements of the Government Claims Act (Gov. Code, § 810 et seq.), formerly known as the Tort Claims Act. This appeal is taken from a judgment entered on the order granting defendant’s motion. However, the issues concern the trial court’s denial of a request for leave to amend the complaint.

After speeding through four stop signs on his motorcycle with a Tuolumne County Sheriff’s Deputy in pursuit, defendant Michael Richard Rutherford was arrested and charged with one felony count of evading an officer with willful or wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)) (count 1), one misdemeanor count of driving on a suspended license (§ 14601.1, subd. (a)) (count 2), and one misdemeanor count of possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)) (count 3). Defendant pled guilty to the two misdemeanor charges and was convicted by jury of the felony evading charge. In a bifurcated proceeding, defendant admitted he suffered a prior felony conviction for battery, inflicting serious bodily injury, in violation of Penal Code section 243, subdivision (d), but disputed that the conviction qualified as a serious felony within the meaning of the Three Strikes law. (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).)

Deputies with the Madera County Sheriff’s Department, acting on a tip concerning a suspect in an attempted murder, tried to stop a vehicle driven by defendant Eric Cyrus Henderson. By the time the incident was over, two deputies had fired a total of five shots at the car and defendant drove off, avoiding detention or arrest. Defendant was arrested two days later and, relevant to his second jury trial at issue in this appeal, charged with one felony count of resisting an executive officer by use of force or violence, in violation of Penal Code section 69, subdivision (a), and one misdemeanor count of resisting a peace officer, in violation of section 148, subdivision (a)(1)). The jury was unable to reach a verdict on the felony count, but convicted defendant of the misdemeanor count. The prosecutor dismissed the felony count after the trial court declared a mistrial, and the court sentenced defendant to 365 days in jail, with credit for time served, and imposed a $100 restitutio