CA Unpub Decisions

Following the death of Wayne Chewning (decedent), objector and appellant Bunni Amburgey, as Executrix of the Estate of Lisa Tanya DeSutter, stepdaughter of decedent (stepdaughter) and Patricia Werner, daughter of decedent (Patricia), obtained $116,049 from decedent’s account at Bank of America after submitting a declaration under Probate Code section 13101. Prior to his death, stepdaughter withdrew $212,300.44 from a bank account in the name of decedent and his wife (stepdaughter’s mother) and used the money to purchase a home in Canyon Lake, California. Petitioner and appellant Edith Warren, as Administratrix of decedent’s estate (Edith), filed two petitions. On December 17, 2012, she sought to examine stepdaughter and Patricia regarding the wrongful taking, concealing or disposing of decedent’s $116,049 via the section 13101 declaration (2012 petition).

This case arises out of criminal and professional disciplinary proceedings brought against Plaintiff Jerome Dunbar Stark (Stark), a practicing attorney, which Stark alleges were the result of a conspiracy by law enforcement to falsify and destroy evidence. Stark appeals from an order granting summary judgment on statute of limitations grounds to defendants County of Orange (County), Orange County Sheriff’s Department (OCSD), Officer Richard Moree (Officer Moree), Officer Olivia Sanchez (Officer Sanchez) and Officer James Porras (Officer Porras) (collectively, defendants), and dismissing Stark’s complaint in its entirety. He contends that the two causes of action in his complaint — one state, one federal — accrued at a much later time than that found by the trial court, and that applying a two-year statute of limitations from the proper accrual date necessarily yields the conclusion that his causes of action are not time-barred.

Defendant Tina Giles-Potter cross-appeals from the judgment against her entered after a jury found in favor of plaintiff C2PM, Inc., on its causes of action for negligence and negligent interference with prospective economic relations. The jury awarded plaintiff $75,404.60 in damages.
Plaintiff filed a notice of appeal on July 20, 2015, on the limited issue of a discovery sanction. The next day defendant cross-appealed the entire judgment.
We subsequently granted plaintiff’s motion to dismiss its appeal. Plaintiff also moved to dismiss defendant’s cross-appeal and filed a notice of plaintiff’s nonfiling of a cross-respondent’s brief. Plaintiff’s motion to dismiss defendant’s cross-appeal argued, inter alia, that plaintiff could not “respond to [defendant’s] opening brief in its current state.” We ordered that plaintiff’s motion for the dismissal of defendant’s cross-appeal would be decided in conjunction with the decision on the cross-appeal.

In this strict products liability action, plaintiff and appellant Elizabeth Ault Smietana sued for injuries she suffered in an accident involving an off-road vehicle designed by defendants and respondents Yamaha Motor Corporation, U.S.A., Yamaha Motor Manufacturing Corporation of America, and Yamaha Motor Company, Ltd. (collectively, Yamaha). Ault-Smietana broke her leg when she extended it outside of the vehicle to brace herself as it tipped over during a turn. The jury returned a verdict in Yamaha’s favor and Ault-Smietana appeals.

Defendant and appellant Larry Mario Padilla was charged by felony complaint with receiving stolen property. (Pen. Code, § 496d, subd. (a), count 1.) The complaint also alleged that defendant had one prior strike conviction. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Pursuant to a plea agreement, defendant pled guilty to count 1. He also admitted the prior strike conviction. In exchange, the court sentenced him to 32 months in state prison and dismissed five other misdemeanor cases.
Defendant filed a timely notice of appeal, in propria persona, based on the sentence or other matters occurring after the plea. He also requested a certificate of probable cause, noting that although he was sentenced to 32 months in prison, the minute order said he was sentenced to three years in prison. The court denied the request for certificate of probable cause. However, an amended abstract of judgment was filed that day reflecting that defendant was sentenced to two years eight m

Defendant and appellant Brett Eric Goutin and his codefendant were charged by felony complaint with transportation of a controlled substance for sale. (Health & Saf. Code, § 11379, subd. (a), count 1.) The complaint alleged that defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).) He entered a plea agreement and pled guilty as charged and admitted the three prior prison allegations. The parties stipulated that the police report contained a factual basis for the plea. Pursuant to the plea agreement, defendant would apply for the drug court treatment program (drug court) but, if not accepted, he would be allowed to withdraw his plea. In another case (case No. MMB1500373), defendant pled guilty to receiving stolen property and possession of a controlled substance, and he applied for drug court in that case, as well.

While the victim was separated from her husband, she started having sex with defendant Jason Douglas Smith. One day, she told her husband that defendant “had been beating on her all week long.” She then told the police that defendant had punched her “all over.” She also said that he threatened to “send people out to hurt” her if she called the police. At trial, she recanted all of these statements; she testified that her bruises were the result of “consensual rough sex.”
A jury found defendant guilty of domestic violence (Pen. Code, § 273.5, subd. (a)), making a criminal threat (Pen. Code, § 422, subd. (a)), and forcible witness intimidation (Pen. Code, § 136.1, subd. (c)(1)). Defendant admitted three prior prison term enhancements (Pen. Code, § 667.5, subd. (b)), including one for domestic violence, which increased the penalty for his current domestic violence conviction. (Pen. Code, § 273.5, former subd. (e)(1); see now Pen. Code, § 273.5, subd. (f)(1).)

Plaintiffs Krista Clem, individually and as trustee of the O’Sullivan Family Trust, appeal from a judgment entered following an order dismissing this action with prejudice. Plaintiffs contend the trial court violated their procedural due process rights by requiring them to pay attorney fees as a condition precedent to filing a sixth amended complaint. Defendants Tom Hunt, Mary Hunt, and Sierra View Holdings, LLC, contend, among other things, that plaintiffs have failed to carry their burden of affirmatively showing error on an adequate record. We agree with defendants and affirm the judgment.

Last summer this court considered seven appeals arising from Judge Gail
Andler’s March 2014 rulings on 49 motions made in eight different superior court cases
in a single minute order. Those appeals presented similar fact patterns and had
overlapping legal issues. We will now consider another appeal arising from the same
2014 order: This appeal is functionally identical to one we already decided, Alice Gee v.
LaSalle Bank, N.A. (June 23, 2016, G050844) [nonpub. opn.] (Gee 1).

Appellant Anthony McGuire appeals from re-sentencing after remand from this court. The appeal, filed for purposes of preserving issues for federal review, demonstrates no error under state law. We affirm.
Appellant, age 17 at the time the crimes at issue were committed, was convicted in 2009 of first degree murder (Pen. Code, §187, subd.(a)) and two counts of attempted premeditated murder (§§ 664, 187), with true findings on gang (§ 186.22 (b)(1)) and firearm enhancements (§ 12022.53, subd. (b)-(d)). In 2013, this court reversed his 90 years to life sentence on appeal and remanded the matter for resentencing, concluding the trial court had failed to consider the factors identified in Miller v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407] and People v. Caballero (2012) 55 Cal.4th 262.

In 2005, defendant Douglas Lynn Riskas entered a Nordstrom department store,
grabbed four purses from a display counter, and ran out the door to a waiting getaway
vehicle. He pleaded guilty to second degree burglary. (Pen. Code, §§ 459, 460,
subd. (a).)1 The trial court imposed a term of 16 months in prison and ordered restitution
for the amount of $1,400.

Derek Eugene Eichler (Eichler) was charged with felony grand theft (Pen. Code, § 487, subd. (a); count 2), felony vandalism (§ 594, subd. (a); count 3), and misdemeanor vandalism (§ 594, subd. (a); count 4). The information alleged that Eichler suffered a prior strike conviction pursuant to section 667, subdivision (d) and section 1170.12, subdivision (b); a prior serious felony conviction pursuant to section 667, subdivision (a)(1); and two prison priors pursuant to section 667.5, subdivision (b).

BMW Financial Services NA, LLC (BMW Financial) appeals from an
order granting a motion to compel acknowledgment of satisfaction of judgment entered in
favor of Frank Deloach. BMW Financial obtained a large default judgment against
Deloach relating to a leased car that had been repossessed with an altered odometer.
Owing to BMW Financial’s mistake in sending the Deloach account to a collection
agency, the agency and Deloach’s father settled the matter for considerably less than the
amount of the default judgment. BMW Financial tried to rescind the settlement, but
Deloach filed a motion for satisfaction of judgment, which the trial court granted.

Plaintiff Veronica Hernandez-Keller (Hernandez-Keller) purchased a home from defendant Holt/Grand LLC in 2004 and almost immediately noticed plumbing problems with the property. She and the other plaintiffs, who lived in the home, submitted repair request forms over several years but the problems never abated. In 2014, plaintiffs filed a lawsuit against Holt/Grand LLC, Comstock Crosser & Associates Development Company, Inc. (Comstock), and Abel Silva (Silva) (collectively defendants). Defendants moved for summary judgment on the grounds that plaintiffs’ lawsuit was untimely. The trial court granted the motion, and plaintiffs appeal. We agree with the trial court that plaintiffs knew or should have known of their claims against defendants long before this lawsuit was filed. Moreover, plaintiffs have not shown that defendants are barred from asserting the statute of limitations defense.
Accordingly, we affirm.