CA Unpub Decisions

A jury convicted defendant and appellant Gilbert Tapia of four counts of transportation and possession for sale of heroin and methamphetamine. In connection with a prior appeal, we conditionally reversed the judgment in order for the trial court to conduct a supplemental in camera review of law enforcement personnel records pursuant to Pitchess v. Superior Court of Los Angeles County (1974) 11 Cal.3d 531 (Pitchess). In addition, we ordered Tapia resentenced if the court were to reinstate the judgment, due to several sentencing errors.
On remand, the court conducted a supplemental in camera Pitchess review, after which it determined no disclosures were required. The court reinstated the judgment and resentenced Tapia to an aggregate term of eight years, which included a three-year enhancement for a prior drug conviction, pursuant to former Health and Safety Code section 11370.2. The court also awarded Tapia custody credits for time served prior to the original sentencing.

Scott James Fitzgerald appeals a judgment of the superior court following his guilty plea to three counts of grand theft. (Pen. Code, § 487, subd. (a).) He obtained a certificate of probable cause.

The trial court granted a special motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP statute), and sustained a demurrer without leave to amend in favor of defendants and respondents Jason W. Kearnaghan and Sheppard, Mullin, Richter & Hampton, LLP (collectively, Sheppard Mullin), and Swift Transportation and Swift Transportation Co. of Arizona LLC (collectively, Swift). Plaintiff and appellant Dillard James McNeley appeals from the judgment entered after the trial court’s rulings. We affirm.

Sally Lou Lopez was convicted by jury of aiding
and abetting her boyfriend in the transportation of methamphetamine for sale. Probation was granted on certain terms and conditions including the service of 90 days in jail. (Health & Saf. Code, § 11379, subd. (a).) She appeals, contending that the judgment is not supported by the evidence and that the trial court committed instructional error. We affirm.

Dacosta Theophilus Borroughs appeals from the judgment entered after a jury convicted him of second degree robbery (Pen. Code, §§ 211, 212.5) and making a criminal threat. (§ 422.) The jury found true an allegation that he had personally used a deadly weapon - a knife - in the commission of the robbery. (§ 12022, subd. (b)(1).) The trial court found true two prior prison terms (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)(1)), and one prior serious or violent felony conviction (“strike”) within the meaning of California’s “Three Strikes” law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The court struck the two prior prison terms and sentenced appellant to prison for 11 years, 4 months. It ordered him to stay away from the victim of the criminal threat and the store where the robbery had occurred.

Robert Besinger appeals the sentencing order after he pled guilty in three cases (Case Nos.: 2012007062, 2012015126 & 2015001404). (Pen. Code, § 1237, subd. (b).) He was sentenced to a total of 24 years in state prison.
Besinger contends the trial court failed to exercise its discretion because it did not consider mitigating factors. The Attorney General argues no error but contends that a remand is necessary because of an ambiguity in the court’s oral pronouncement of sentence. On this record, we cannot review for error because we cannot determine what sentence the court intended to impose. Therefore, we remand the case to the trial court to resolve the ambiguity.

This appeal concerns the proposed development of a vacant parcel of land located in the northeastern San Fernando Valley. In 2014, real parties in interest Line 204, LLC, and Alton Butler (collectively, Line 204) sought a land use determination (also referred to as “conditional use” approval) from the City of Los Angeles (City) to build a film and television studio on the parcel. The request was opposed by nearby homeowners, who contended that the proposed development was inconsistent with the parcel’s designation as “open space” on the Sun Valley-La Tuna Canyon Community Plan (sometimes referred to as the “Community Plan” or the “Plan”). Following public hearings, the City Planning Commission and Los Angeles City Council approved the land use determination.

Spouses Meir Westreich and Maria Ruiz (plaintiffs) brought an action against their next-door neighbors Randall and Janice Higa (defendants) concerning a boundary line dispute. Defendants prevailed in that action and judgment was entered in their behalf. As the prevailing parties (Code Civ. Proc., §§ 1032, subd. (b); 1033.5), defendants claimed $69,824 in costs. This sum included defendants’ filing fees, service of process fees, deposition costs, court reporter fees, cost of trial transcripts, and costs for “[m]odels, blowups, and photocopies of exhibits.” This amount also included $38,229.00 in expert fees incurred after plaintiffs failed to accept defendants’ section 998 offer.
Plaintiffs moved to strike and/or tax costs, challenging every category except filing fees. Defendants opposed the motion. The hearing on plaintiffs’ motion was not reported and was held without Westreich, who arrived late, after the trial court ruled. Plaintiffs’ motion was denied in

In an effort to postpone a residential property foreclosure, Sharon Simantov (plaintiff) sued JPMorgan Chase Bank, N.A. (Chase) and California Reconveyance Company (CRC) (collectively, defendants), for violations of the Perata Mortgage Relief Act (Civ. Code, § 2923.5 (section 2923.5)) and Business and Professions Code section 17200, as well as for breach of the implied covenant of good faith and fair dealing. The latter two causes of action were dismissed without leave to amend on demurrer. Defendants’ motion for summary judgment as to the cause of action based on section 2923.5 was subsequently granted. We affirm.

By means of a plea agreement, Megan Clark pleaded nolo contendere to possession of a controlled substance for sale (Health & Saf. Code, § 11378) and admitted three prior convictions of the same offense within the meaning of section 11370.2. She requests that this court independently review the record pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) to determine whether the trial court erred when it sealed portions of the search warrant and denied her motion to quash and traverse the warrant. In supplemental briefing, she argues that the sentence enhancements imposed for her prior convictions under section 11370.2 must be stricken. We strike the section 11370.2 sentence enhancements and otherwise affirm.

Aundray C. Richey appeals a judgment following conviction of kidnapping, misdemeanor assault, genital penetration by a foreign object of an unconscious person, possession of cocaine base for sale, and misdemeanor possession of methamphetamine, with findings of a prior serious felony and strike conviction. (Pen. Code, §§ 207, subd. (a), 240, 289, subd. (d)(1), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d); Health & Saf. Code, §§ 11351.5, 11377, subd. (a).) We reverse and remand for resentencing regarding count 6, possession of cocaine base for sale, but otherwise affirm. (People v. Keith (2015) 235 Cal.App.4th 983, 985 [application of newly amended Health and Safety Code section 11351.5 mitigating punishment].)

Alonzo Bernard Johnson was convicted of first degree residential robbery (Pen. Code, § 211), kidnapping to commit robbery (§ 209, subd. (b)(1)), and first degree burglary (§ 459). He argues that the trial court should have granted his motion for acquittal on the charge of kidnapping to commit robbery, that his presentence custody credits were improperly calculated, and that multiple minute orders and the abstract of judgment include errors. We affirm the judgment as modified.

Taroub Rusnak sued Janice Salaman and Daniel Laikin, alleging Salaman had fraudulently transferred $1.75 million to a company established by Laikin in an effort to avoid paying a judgment entered against Rusnak. Following a bench trial the court entered judgment against Laikin, awarding Rusnak $1.75 million in compensatory damages, $848,438.36 in prejudgment interest, $1 million in punitive damages and attorney fees of $95,067.50. On appeal Laikin contends the court’s ruling was not supported by substantial evidence and challenges the legal bases for certain aspects of its decision. We affirm.

Sofik Tsaturyan, Sarkis Tatevosian, Manvel Hunanyan and Anna Guyumdzhyan each started taking Avandia, a drug manufactured by GlaxoSmithKline LLC (formerly SmithKline Beecham Corp.)(GSK) to help adults with type 2 diabetes control their blood sugar, between 2002 and 2007. Each of them was diagnosed with cardiovascular injury before or during 2007. In 2011 Tsaturyan, Tatevosian, Hunanyan and Guyumdzhyan sued GSK for failure to warn of Avandia’s alleged cardiovascular risks, asserting causes of action for negligence, strict liability and fraud. In January 2016 the trial court granted GSK’s motion for summary judgment, ruling the publicly available information regarding Avandia and any associated cardiovascular risks was sufficient to put Tsaturyan, Tatevosian, Hunanyan and Guyumdzhyan on notice of possible causes of action against GSK no later than December 31, 2007.