CA Unpub Decisions

David Merritt sued his former employer, Equinox Fitness Woodland Hills and Equinox Fitness, Inc. (collectively, Equinox), for disability discrimination in violation of the California Fair Employment and Housing Act (FEHA), Government Code section 12900, et seq. The trial court granted Equinox’s motion for summary adjudication on the FEHA-based claims, concluding the undisputed facts established that Merritt did not suffer from a “disability” as defined by FEHA, and that Equinox terminated his employment for a legitimate nondiscriminatory reason. The court also granted Equinox summary adjudication on Merritt’s request for punitive damages. We affirm the court’s ruling on the punitive damages claim, and reverse the judgment in all other respects.

These are the third and fourth appeals in this matter. In the initial appeal, defendant and cross-complainant Zelma R. Stennis (Zelma) appealed from a portion of a judgment entered after a jury trial in favor of plaintiff and cross-defendant Kathleen A. Kenne (Kenne). Kenne appealed from the portions of the judgment in favor of Zelma and awarding attorney’s fees and costs in favor of defendant Kevin P. Stennis (Kevin), Zelma’s son. Kevin also appealed from the judgment as to the award of attorney’s fees and costs. We affirmed the judgment and awarded Kevin his costs on appeal. (Kenne v. Stennis (Feb. 26, 2013, B221752) [nonpub. opn.].)Kenne then appealed from post-judgment orders granting Kevin’s third party claim of ownership of real property on which Kenne had filed a writ of execution to satisfy the judgment against Zelma. We affirmed the orders and again awarded Kevin his costs on appeal. (Kenne v. Stennis (Jun. 10, 2015, B250195) [nonpub. opn.].)

Defendant Roberto Pasillas appeals an order directing him to pay $6,995 in victim restitution for a car he stole and subsequently totaled when he attempted to evade the police. He contends the court erred in setting the amount of restitution at the price the owner had listed the car for sale rather than the owner’s acquisition and carrying costs. We conclude the trial court did not abuse its discretion in setting the restitution amount, and thus affirm.

Zachary James Stovall appeals from a post-judgment order amending his abstract of judgment. At issue is whether the Napa Superior Court improperly resentenced appellant when it amended the abstract of judgment to include his previously imposed sentence from Lake County. The effect of the amendment was to send defendant back to prison after he had completed his Napa County sentence. In this appeal, appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Wende (1979) 25 Cal.3d 436.) Appellant was notified of his right to file a supplemental brief, but has not done so.

Gregory Leroy Hall appeals from a trial court order extending his state hospital commitment under Penal Code section 1026.5, subdivision (b), which governs the procedure for extending commitments for persons found not guilty by reason of insanity (NGI). He contends insufficient evidence supports the order, and that the trial court erred by admitting case-specific hearsay from an expert witness in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
We affirm.

Sel Charvbet Butler appeals from a judgment of conviction and sentence imposed after he entered a plea of guilty to multiple sexual offenses. He contends that a condition of his probation, which requires him to submit to warrantless searches and seizures of specified types of information on his electronic devices, is unconstitutionally overbroad. We will affirm.

Appellant Law Offices of Emeziem & Others appeals from certain portions of two orders, filed on June 9, 2015, and August 19, 2015, in which the trial court (1) directed that appellant law firm’s client was required to comply with Penal Code section 1536.5 to obtain copies of documents which were seized in the execution of a search warrant; (2) ordered that respondent California Department of Justice (DOJ) was no longer restrained or enjoined from receiving, examining, copying, or otherwise utilizing the documents taken in the execution of the search warrant; and (3) denied appellant’s request for attorney fees and costs in connection with its application challenging the execution of the search warrant. We affirm.

Plaintiff Brian McVeigh appeals from a judgment after a jury found his former employer, Recology San Francisco et al. (Recology), did not fire him in violation of California’s False Claims Act (CFCA; Gov. Code, § 12650 et seq. and Gov. Code former section 12653, subd. (b)). The court instructed the jury that, to find for McVeigh, it had to find he informed Recology or a law enforcement entity that he suspected Recology was submitting false claims to a government agency. McVeigh contends this instruction erroneously and prejudicially foreclosed the jury from finding Recology violated the CFCA by firing him in retaliation for his investigation of suspected fraud. We agree, and reverse the judgment.

Plaintiffs Cheriel Jensen and Healthy Alternatives 2 Pesticides filed a petition for writ of mandate and injunctive relief against defendants County of Santa Clara and the Santa Clara County Vector Control District (collectively, defendants), which alleged that defendants’ mosquito control operations (including pesticide fogging) violate the California Environmental Quality Act (CEQA; Pub. Res. Code, § 21000 et seq.) and Health and Safety Code section 2053. Plaintiffs argue the trial court erred by sustaining a demurrer to their second amended petition because their CEQA cause of action was timely and they adequately stated a cause of action for a violation of Health and Safety Code section 2053. Plaintiffs also argue that they should be allowed leave to amend to allege new causes of action. For the reasons stated here, we will affirm the judgment.

While on parole, defendant Miguel Angel Rivera fired a gun at a shooting range on three occasions. Video footage of two of those visits was posted on defendant’s public Facebook page. Also posted on that page were several photographs that a gang expert opined were gang-related. A jury convicted defendant of three counts of possessing a firearm as a felon. (Pen. Code, § 29800, subd. (a)(1).) Gang enhancements were alleged for two of those counts, and the jury found both true. (Pen. Code, § 186.22, subd. (b)(1)(A).) In defendant’s original briefing, he contends there was insufficient evidence to support the gang enhancements because there were no indicia of gang activity in the videos that were posted online. In a supplemental opening brief, defendant argues the trial court erred by allowing the prosecution’s gang expert to discuss case-specific, testimonial hearsay in violation of the principles articulated in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).

Plaintiff Carolina Camacho appeals a summary judgment in favor of the City of San Jose in this wrongful death action. Camacho alleges her daughter’s death in a pedestrian-motor vehicle accident was due to a dangerous condition of public property: the City’s failure to install a barrier fence on the median where the accident occurred to prevent pedestrians from crossing there. (Gov. Code, § 835.) The City moved for summary judgment, challenging three elements of Plaintiff’s cause of action. The City also argued it had a complete defense based on design immunity. (Gov. Code, § 830.6) The trial court found that the City had met its burden of demonstrating that there was no dangerous condition as a matter of law and granted the motion for summary judgment.

Defendant is serving a prison sentence of nine years eight months after pleading guilty to unlawfully manufacturing, importing, selling or possessing an expandable baton or mini bat, and admitting a strike prior and seven prison term priors. We affirm the judgment.

Defendant and appellant Mark Anthony Salinas appeals from an order denying his petition for recall of his indeterminate life term under Penal Code section 1170.126. We will affirm the order.

On appeal, appellant contends that the court erred by awarding respondent about $2,110 for damages to his truck caused by appellant after she threw several large, baseball-sized rocks at him and his truck during the domestic violence incident that was the subject of the protective order in this case. She further contends the court erred in issuing the restraining order against her because the court allegedly failed to consider evidence she had proffered showing that respondent allegedly was a violent and angry person and that he allegedly had mistreated her in the days leading up to the incident. Finally, she contends the court erred in admitting and relying on certain evidence, including photographs of the damage to respondent's truck.