CA Unpub Decisions

Josue Farfan and his brother Edgar Farfan (defendants) were convicted by jury of murder, kidnapping for robbery and second degree robbery (§ 211). The jury found true the special circumstances allegation that the murder was committed while the defendants were engaged in the commission of a robbery. The trial court sentenced both defendants to life in prison without the possibility of parole (LWOP) plus five years for the robbery conviction. The court stayed the sentence for the kidnapping conviction pursuant to section 654.Defendants appeal from the judgment of conviction. . Josue contends the trial court erred in compelling his wife, Jennifer Medina to testify and also erred in admitting Edgar’s pretrial statement to police. Josue also contends the abstract of judgment must be corrected to match the trial court’s oral pronouncement of sentence.

The trial court imposed a five-year sentencing enhancement on Jermond C. Davis (defendant) because his prior robbery conviction constituted a “serious felony” conviction under Penal Code section 667, subdivision (a)(1). Defendant argues that this was error because he only admitted that his robbery conviction was a “strike” within the meaning of our Three Strikes law (§§ 667, subds. (b)-(j) & 1170.12, subds. (a)-(d)), and because the trial court never told him that, in so admitting, he was also admitting that his prior robbery conviction was a prior “serious felony” that could subject him to the additional five-year term. We conclude that defendant forfeited this objection by not objecting when the trial court later imposed the five-year enhancement, that his admission was still “knowing and voluntary,” and that he was not in any event prejudiced by the trial court’s omission. Accordingly, we affirm.

Willie Mae Drumgo, in her personal capacity and in her capacity as successor trustee of the James Gardner and Beatrice Gardner Revocable Trust (the Trust), appeals from an order finding her guilty of contempt for willfully violating a court order directing the disposition of certain trust assets. Although an appeal is not authorized from an order of contempt (Code Civ. Proc., § 904.1, subd. (a)(1)), we will exercise our discretion to consider Drumgo’s challenge as a writ petition (see, e.g., Van v. Language Line Solutions, Inc. (2017) 8 Cal.App.5th 73, 79), and deny the writ.

Seeking to avenge the death of a friend, Londale McNeil (McNeil), Dayvion Deandre Combs (Combs), Cedric Octavia Harris (Harris) and Paul Demetrius Allen, Jr., (Allen) drove into a rival gang’s territory looking for the man they believed was responsible for their friend’s death—Keiun Harris. When they could not find Keiun, the four drove deeper into the gang’s territory. McNeil and Combs then opened fire on another vehicle they spotted. Two men—Leroy Bernardez (Bernardez) and Diallo O’Quinn (O’Quinn)—occupied the vehicle. McNeil, who stood in front of Combs, fired a single shot from his .357-caliber revolver. Combs fired 15 shots, one of which fatally struck McNeil.
Combs, Harris, and Allen were subsequently charged with conspiracy to commit murder, as well as the murder of McNeil, the attempted murder of Bernardez and O’Quinn, and shooting at an occupied vehicle.

Plaintiff Villa Riviera Condominium Association (the Association) appeals from a postjudgment award of attorneys’ fees in an action against a former condominium owner, defendant David James Berg III, to collect unpaid assessments. The Association contends the trial court erred by awarding it less than one-third of the total attorneys’ fees it requested without specifying reasons for the reduction. The Association also argues the court erroneously overruled its objections to Berg’s evidence. We affirm.

Plaintiff and appellant Gurpreet Singh brought and lost a wage and hour case against his former employer, defendant and respondent Rathaur Subway, Inc. (Rathaur Subway), before the California Labor Commissioner, alleging Rathaur Subway owed Gurpreet for unpaid regular and overtime wages; premiums for overtime, meal and rest breaks; and penalties. Gurpreet appealed to the Superior Court, which heard the case de novo, as provided for in Labor Code section 98.2, subdivision (a). Gurpreet now appeals from a judgment of the Superior Court, following a bench trial. The trial court explained its reasoning and supported it with reference to substantial evidence in a 17-page statement of decision. We affirm.

Dr. Myung Choi sued the Board of Trustees of the California State University (the University) alleging race discrimination and retaliation culminating in its decision to deny her tenure and terminate her from employment. The University filed a special motion to strike Choi’s complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16) on the ground that its tenure decision was an act in furtherance of its free speech rights. The trial court granted the motion and Choi appeals. Exercising our de novo review, we conclude that Choi’s complaint does not arise from activity protected by the anti-SLAPP statute. In her related appeal, Choi challenges the trial court’s order awarding attorney fees to the University. We reverse both orders.

Alberto Nogales appeals his conviction by jury of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and aggravated trespass (Pen. Code, § 602.5, subd. (b)). Assigned counsel submitted a Wende brief, certifying an inability to identify any issues for appellate review. Counsel also submitted a declaration confirming Nogales was advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.) We find no arguable issues and therefore affirm.

Appellants Christine Dean (Dean), DeNova Homes, Inc. (DeNova), and Civic Martinez, LLC (collectively, plaintiffs) filed the underlying action for interference with prospective economic advantage and defamation against respondents Friends of Pine Meadow and several individuals (collectively, defendants), seeking damages and injunctive relief for allegedly false statements and publications regarding plaintiffs’ plan to construct a housing development on the Pine Meadow Golf Course in Martinez. Judgment was entered against plaintiffs after the trial court granted defendants’ special motion to strike plaintiffs’ complaint pursuant to section 425.16 of the Code of Civil Procedure. On appeal, plaintiffs contend their claims arise out of commercial speech, which is not protected activity under the anti-SLAPP law. Our standard of review is de novo. (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 681–682.) We affirm.

Michael Steffen sued Triple Z Ranch, LLC (Triple Z) and its members, Susan Byrne, Katherine Byrne, and Charles Jones, to recover, among other things, unpaid minimum wages and overtime compensation (Lab. Code, § 1194). The trial court sustained Triple Z’s demurrer to Steffen’s second amended complaint (SAC) with respect to these and other statutory wage claims, without leave to amend, and ultimately entered judgment in Triple Z’s favor. Steffen appeals from the judgment, arguing the trial court erred in concluding his statutory causes of action were barred by the applicable statute of limitations (Code Civ. Proc., § 338, subd. (a)) and he failed to allege Triple Z was his employer. We agree the trial court erred in sustaining Triple Z’s demurrer to Steffen’s statutory wage claims and reverse.

Appellant John Linwood Baskerville appeals a judgment resulting from a jury verdict convicting him of all but one count of an eight-count information charging him with driving in willful or wanton disregard for the safety of persons or property while fleeing a pursuing police officer (Veh. Code, § 2800.2), driving under the influence of alcohol (§ 23152, subd. (a)), and six other counts alleging other violations of the Vehicle Code.
Appellant claims the trial court committed instructional error in two respects with regard to the charge of willful or wanton disregard for safety while fleeing a pursuing peace officer: (1) failing to instruct the jury on the elements of the predicate traffic violations (ignoring red lights and speeding) necessary to sustain the charge, and (2) failing to give the jury a unanimity instruction regarding appellant’s attempts to elude the police during two pursuits.

Defendant Kenneth Rohrbach (Rohrbach) pled guilty to attempted extortion by threat, electronically delivering a harassing image, and secretly photographing a person under the clothing in connection with two incidents in which he sent anonymous emails to two female co-workers, attaching pictures of them using a unisex restroom at their place of employment and threatening to distribute the images unless the women provided him with provocative pictures of themselves. The trial court sentenced Rohrbach to 12 months in county jail and three years’ probation. On appeal, Rohrbach argues that the affidavit in support of the search warrant executed on his residence lacked probable cause and that various aspects of his conditions of probation are unconstitutionally vague and overbroad. We will modify certain conditions of probation, and otherwise affirm.

In the underlying administrative mandamus proceeding, eleven retired teachers (Teachers) contested attempts by California State Teachers’ Retirement System (CalSTRS) to recoup retirement benefit overpayments that had resulted from a years-long miscalculation of Teachers’ monthly benefits. Teachers prevailed below in contending that the statute of limitations barred CalSTRS’s efforts to recoup prior overpayments and to adjust downward all future monthly benefits, and judgment was entered in Teachers’ favor on June 3, 2015 (Judgment). CalSTRS appealed the Judgment. In that appeal, this court, on December 12, 2017, filed its opinion reversing the Judgment and remanding the case for further proceedings. (See Baxter v. State Teachers’ Retirement System (2017) 18 Cal.App.5th 340 (Baxter I).)

This action arises out of a dispute between family members (mother and daughter) concerning residential property located on Swallow Lane in Gilroy (the Property). Plaintiffs and respondents Allison Bass and Jason Bass (collectively, Plaintiffs or Bass) moved into the Property in 2010 after its purchase by defendants and appellants Linda K. Jones and Frank T. Jones (collectively, Defendants or Jones). Allison and Jason Bass are the daughter and son-in-law, respectively, of Linda Jones. Although not clearly disclosed in the record before us, Plaintiffs asserted in the lawsuit that they had a contract or an option to buy the Property from Defendants for the same price Defendants originally paid for it, i.e., $426,000. After a bench trial, the court granted Defendants’ motion for summary disposition of the case (hereafter, the Dispositive Motion); the motion was termed at trial a nonsuit motion, and was described in the subsequent judgment as a motion for judgment.