CA Unpub Decisions

In the underlying proceeding, appellant James William Corbin, representing himself, was convicted of indecent exposure under Penal Code section 314. Appellant’s principal contention is that the trial court committed reversible error after determining during pretrial proceedings that appellant’s 1983 conviction for indecent exposure was an element of the offense charged against him. Appellant maintains that due to the error, his 1983 conviction for indecent exposure was improperly disclosed to the jury. Additionally, appellant contends the trial court erred in admitting evidence of other prior acts of indecent exposure. We conclude that appellant has forfeited his contentions relating to the 1983 conviction, and that he has shown no error regarding the other prior acts of indecent exposure. We therefore affirm.

Defendant and appellant Jeffrey Ludlow (Ludlow) prevailed on an anti-SLAPP motion to strike plaintiff and respondent D and S Homes’ (D&S’s) complaint alleging Ludlow and other defendants maliciously prosecuted a lawsuit against D&S. We consider whether the trial court abused its discretion determining a reasonable attorney fee for prevailing in the anti-SLAPP litigation was $61,250 (crediting 175 hours of work at $350 per hour), notwithstanding Ludlow’s request for $242,585 (seeking credit for 693.1 hour of work at $350 per hour).

County of Los Angeles Child Support Services Department (the County or the Department) appeals from an order directing it to reimburse defendant Turner for overpayment of child support, and allowing the County to seek reimbursement only from Other Parent Meya Hart (who received direct payment of child support from Turner while also receiving public assistance). We affirm the order.

Plaintiffs Greg Reynante, Julie Reynolds, and Paul Garber appeal from the denial of their motion for class certification. Plaintiffs alleged defendants Toyota Motor Sales USA, Inc., and Toyota Motor North America, Inc. (collectively “Toyota”) violated the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.) and the Consumers Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.) by providing an online fuel calculator that performed a misleading comparison between Environmental Protection Agency (EPA) fuel economy estimates and a consumer’s estimate of his or her current vehicle’s actual fuel economy.
The trial court denied class certification because individual questions of law or fact predominated over common questions, as well as because the class was not ascertainable and a class action was not superior to individual adjudication. We affirm.

A 7-Eleven employee who was robbed at gunpoint in the workplace was later shot and killed by the robber (or the robber’s girlfriend) as the employee left the 7-Eleven to testify at the robber’s criminal trial. The employee’s parents alleged 7-Eleven and its franchisee, which was their son’s direct employer, were negligent in failing to provide a security guard at the store. The trial court granted summary judgment for the defendants. We consider whether the summary judgment record requires a trial on the issue of whether the employee’s murder was foreseeable.

Appellant John Fontenot was charged with one count of simple kidnapping. (See Pen. Code, § 207.) At a bench trial, the court found Fontenot not guilty of kidnapping, but guilty of attempted kidnapping.
Fontenot argues the court lacked jurisdiction to convict him of attempted kidnapping because that offense was neither charged in the accusatory pleading, nor necessarily included in the alleged crime of kidnapping. Although Fontenot acknowledges the California Supreme Court has previously held that attempted kidnapping is a lesser included offense of kidnapping (see People v. Martinez (1999) 20 Cal.4th 225, 241 (Martinez)), he contends that decision is no longer valid in light of the Court’s subsequent decision in People v. Bailey (2012) 54 Cal.4th 740 (Bailey). We affirm, concluding we are bound by the Court’s holding in Martinez.

In this appeal, counsel for appellant has filed a declaration stating she has reviewed the record in the matter and decided to file a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Her presentation of the matter is unique in that she presents several legal arguments on possible issues in the case and, for the most part, proceeds to discount them with legal authority. She has written appellant and advised him of her conclusion to file a Wende brief. She advised appellant he may file a supplemental brief with this court raising any issues he believes need to be addressed. More than 30 days have passed and no supplemental brief has by filed by appellant. We have reviewed the record and conclude the judgment should be affirmed. The appeal is timely.

After defendant Andrew Charles Lee Gibson pleaded no contest to elder abuse (Pen. Code, § 368, subd. (b)(1)), the trial court suspended imposition of sentence and placed him on three years of formal probation on the condition he serve 240 days in the county jail. After he was released from jail, the trial court revoked probation and sentenced him to the upper term of four years. Defendant appeals from the court’s imposition of the upper term.

After two trials, the first of which ended in a hung jury, Shannon Louis Barden was convicted on a felony charge of resisting an officer with force or violence in violation of Penal Code section 69. Prior to the second jury trial, Barden pled no contest to misdemeanor violations of using a controlled substance in violation of section 11550, subdivision (a) of the Health and Safety Code and driving with a suspended license in violation of section 14601.1, subdivision (a) of the Vehicle Code. After the trial, Barden failed to appear for his sentencing hearing and ultimately pled guilty to a felony violation of section 1320, subdivision (b) for that failure to appear, and to additional misdemeanor charges of possession of methamphetamine, petty theft and driving on a suspended license.

Defendant Marcus Kutterer appeals from the trial court’s denial of a petition to recall his sentence pursuant to Penal Code section 1170.18 and to reduce his prior conviction for unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a), from a felony to a misdemeanor. We shall reverse and remand for further proceedings in light of the Supreme Court’s recent decision in People v. Page (2017) 3 Cal.5th 1175 (Page).

This appeal of a civil discovery sanctions award arises from litigation following an allision between two charter vessels on October 5, 2013. One of the boat owners, Scott Varena, filed a complaint against the other boat owner, John Christopher Duba, alleging negligence and intentional infliction of emotional distress. Duba filed a cross-complaint alleging breach of contract and fraud (intentional deceit and negligent misrepresentation), for Varena’s alleged failure to abide by an oral agreement to accept $400 “as full and final compensation for any and all damages sustained by [Varena] as a result of the October 5, 2013 allision,” including for loss of tour business and hull damage. Varena filed 10 motions to compel responses and further responses to his written discovery requests. The trial court denied all 10 motions and imposed monetary sanctions of $6,331.60 against Varena and his counsel. Varena appealed. We affirm the sanctions orders and award Duba costs on appeal.

Defendant Xavier Koma Boatwright pleaded no contest to one count of human trafficking (Pen. Code, § 236.1, subd. (c)). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. On appeal, defendant contends the probation conditions involving his use of the Internet and the search of his electronic devices are unconstitutionally vague and/or overbroad. The order is affirmed.

In 2009, defendant Adalberto Aparicio pleaded guilty in two separate cases to driving under the influence with a blood alcohol content greater than .08 (Veh. Code, § 23152, subd. (b))—one count for each case. In both cases, he admitted he had three prior convictions for driving under the influence (id., § 23550, subd. (a)). Defendant was granted probation in both cases. Many years later, the prosecution alleged defendant violated his probation by failing to comply with a condition that required him to install an ignition interlock device. Defendant admitted the violation and probation was reinstated, subject to additional conditions.
On appeal, defendant challenges the court’s 2016 order requiring him to pay a restitution fine (Pen. Code, § 1202.4) of $300 and a probation revocation restitution fine (§ 1202.44) in the same amount in one of the cases.

After a court trial, the trial court rejected a wage and hour action brought by plaintiffs Martin Juarez and Adrian Ramirez against defendant MB Body Shop and its principals. The court subsequently denied defendants’ request for attorney’s fees pursuant to Labor Code section 218.5. On appeal, plaintiffs contend that the court (1) erred in concluding that MB Body Shop complied with state minimum wage and overtime requirements; (2) abused its discretion in refusing to vacate its ruling granting defendants’ motion for judgment (Code Civ. Proc., § 631.8) on plaintiffs’ cause of action for failure to provide rest breaks; (3) erred in concluding that MB Body Shop was not liable for restitution under Business and Professions Code section 17203 or for penalties under sections 203, 226, and 2698 et seq.; and (4) erred in rejecting Juarez’s cause of action for violation of the Ralph Civil Rights Act (Civ. Code, § 51.7; the Ralph Act).