CA Unpub Decisions

Luke O. (“Father”) appeals from the juvenile court’s order of December 18, 2013, finding it would be detrimental to his son, Daniel, to be placed in Father’s custody under Welfare and Institutions Code [1] section 361.2. The Los Angeles Department of Children and Family Services (DCFS) cross-appeals from the juvenile court’s order of the same day dismissing with prejudice the section 342 petition with prejudice based on insufficient evidence.

We disagree with both sides’ contentions and affirm.

Christopher Murray filed a petition for writ of habeas corpus, challenging as unconstitutional the life without parole sentence he received after being convicted of homicide offenses he committed when he was a juvenile. We issued an order to show cause why that sentence should not be reversed. We granted the petition and reversed the judgment so the trial court could resentence Murray in accord with the principles enunciated in Miller v. Alabama (2012) 567 U.S. ___, 132 S.Ct. 2455 (Miller). The California Supreme Court granted the People’s petition for review, vacated our decision, and directed us to reconsider the matter in light of People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). After doing so, we conclude our prior opinion comports with the Supreme Court’s decision in Gutierrez , and we once more reverse the sentence and remand for resentencing pursuant to Miller and Gutierrez.

A third amended information charged Lewis with eight counts, including those in issue on this appeal: count 4, second degree burglary of a vehicle, in violation of Penal Code section 459;[1] and count 6, obstructing or delaying a police officer, in violation of section 148, subdivision (a)(1). A jury found Lewis guilty on those and four other counts, and the trial court sentenced Lewis to a total term of seven years and four months in state prison.

At trial, Arcadia Police Officer Zachary Schumaker testified that he was on duty early in the morning of June 19, 2012. A resident told him that he had heard glass shatter and there may have been a car burglary in the area. Officer Schumaker made a traffic stop of Lewis’s truck, which left a nearby driveway and drove off, going 65 miles per hour in a 45 miles per hour zone. A search of Lewis’s person and of the truck turned up flashlights, a lockpicker, burglary tools, a crowbar, gloves, screwdrivers, pliers, and a wire cutter, “and what I believe to be stolen property.” Also found under the passenger seat were shaved keys, which are used to access locks on older model vehicles. Officer Schumaker arrested Lewis for suspected vehicle burglary, but the police were unable to confirm that there had been a car burglary.

Two years after the juvenile court terminated dependency jurisdiction with a legal guardianship in place, Tyrone B. (Father) and J. B. (Mother) each filed a petition under Welfare and Institutions Code section 388,[1] seeking an order placing their sons with either or both of them, and/or an order reinstating (Mother)/granting (Father) reunification services. Judge Mark Borenstein reviewed Father’s petition and granted him an evidentiary hearing, finding the best interests of the children might be promoted by the requested change in order. Judge Patricia Spear reviewed Mother’s petition and granted her an evidentiary hearing based on the same finding. The Los Angeles County Department of Children and Family Services (DCFS) filed responses to the section 388 petitions, recommending the juvenile court grant the petitions and order reunification services for Father and Mother. A third judicial officer, Referee Marilyn Mordetzky, reviewed the matter and denied the section 388 petitions without affording Father and Mother the evidentiary hearing previously ordered.

These two appeals are being considered together for purposes of oral argument and decision. In the first appeal, filed on October 9, 2013, Xiam Beer, a partnership, appeals from the June 25, 2013 order denying its fee waiver request and from the September 20, 2013 order striking it from the complaint due to nonpayment of fees. We dismiss that appeal as to the June 25, 2013 order denying the fee waiver request because it is not timely and affirm the September 20, 2013 order striking the complaint because Xiam Beer did not pay its fees. In the second appeal, filed on November 22, 2013, G. Gregory Williams and Pernplit Polpantu appeal from the judgment entered on October 31, 2013, after the trial court sustained without leave to amend the demurrer of the Department of Alcoholic Beverage Control (Department) and Melissa Beach. We conclude the demurrer was properly sustained and thus affirm the judgment. The November 22, 2013 notice of appeal also references two nonappealable orders dated October 11, 2103 and October 31, 2013. We, therefore, dismiss that appeal to the extent it is from those orders.

Jose Merino (appellant) appeals the judgment following a court trial in which he was convicted of two counts of committing a lewd act upon a child under the age of 14 years and 10 years younger than he (Pen. Code, § 288, subd. (a); counts 1 & 4) and one count of sexual penetration of a victim under the age of 14 years and 10 years younger than he (Pen. Code, § 289, subd. (j); count 3). [1] In a court trial, appellant admitted in case No. LA055010, he had two alleged prior convictions of a serious felony, first degree burglary and lewd conduct with a child under the age of 14, which qualified him for five‑year enhancements (§ 667, subd. (a)(1)), for enhanced terms pursuant to the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), for enhanced terms pursuant to the One Strike law with respect to counts 1 and 4 (§ 667.61, subds. (a), (c)(4) & (d)(1)), and for a finding he is a habitual sexual offender (§ 667.71, subds (a), (b) & (c)(4)).

On December 1, 2008, Ca Nunerly (appellant) entered a negotiated plea of guilty to counts 2 and 3 of a felony information alleging the January 13, 2008, offenses of making criminal threats with the personal use of a firearm (Pen. Code, §§ 422, 12022.5, subd. (a)) and to one count of battery, a misdemeanor (Pen. Code, § 242). [1] On January 22, 2009, the trial court placed appellant on three years formal probation on conditions inter alia, he serve 210 days in the Ventura county jail and make $6,552.72 in restitution to the victim, Michael Hunt.

Plaintiff and appellant Stephen Parks sued his landlords, defendants and respondents Michael and Rita Hand, for violation of the Los Angeles Rent Stabilization Ordinance (L.A. Mun. Code, ch. XV, art. I., § 151.00 et seq.) (RSO). He sought to recover all rent paid to the defendants based on their failure to serve him with a copy of a “registration statement” as required by the RSO. The trial court granted its own motion for judgment on the pleadings on the ground that the rental unit was exempt from the RSO. Parks appealed from the resulting judgment. We affirm on the ground that the RSO does not provide for restitution when a landlord has failed to serve a tenant with a registration statement.

In 2005, a drainage pipe owned by the City of Santa Barbara burst, causing a landslide. The landslide damaged property owned by respondents Arthur and Barbara Najera and an adjacent property currently owned by appellant Leslie Cavanagh. [1] The Najeras used money from a settlement with the City to repair their property, but not Cavanagh's. Her complaint, filed in pro per, purported to allege causes of action against the Najeras for trespass, fraud and negligence. She alleged, among other things that the Najeras failed to honor an agreement to use the settlement funds for the repair of both properties. The Najeras filed a cross-complaint against Cavanagh for negligence, trespass, nuisance and loss of subjacent support. After a six-day trial, the jury found in favor of the Najeras on both Cavanagh's complaint and their cross-complaint, ordering Cavanagh to pay the Najeras damages of $300,397. Cavanagh contends the judgment is excessive as a matter of law, that the Najeras cannot recover damages for "pain and suffering," that their claims are time-barred, that the trial court improperly excluded certain evidence and erred when it denied leave for her file a second amended complaint. We affirm.

Defendants Daniel Pickart, Stephanie Pickart, Savoy Bellavia, Annamarie Bellavia, John Acierno, and Luanne Acierno appeal the denial of their Code of Civil Procedure section 426.16[1] special motion to strike plaintiff’s first amended complaint. Plaintiff Adi Ben-Shahar cross-appeals the trial court’s denial of his request for attorney fees in defending the motion. We affirm the denial of defendants’ motion to strike, and reverse the denial of attorney fees and remand to the trial court for further proceedings on attorney fees.

Appellants contend that the trial court erred in classifying this lawsuit as a “garden variety” legal malpractice action and concluding that the activity complained of in respondent’s lawsuit was not protected activity under section 425.16.

Appellants further contend that respondent has not shown a probability of prevailing in the action.

In this marital dissolution action, Dru Gash appeals an order denying his motion to modify his child support obligation. He contends that the trial court should have reduced the amount of child support he pays for his two-year-old daughter. Gash originally stipulated with his former spouse, Limor Ben-Noun, that he would pay monthly child support of $1,000, and the stipulation was entered as an order of the court. Four months later, Gash moved to modify the order arguing that his changed financial circumstances justified a reduction of his child support obligation. The trial court denied the motion on the ground that Gash had not shown a substantial change of circumstances. On appeal, Gash contends that the trial court erred in denying the motion without first calculating guideline child support pursuant to Family Code section 4055 or setting forth that calculation in its order. Gash also contends that the trial court erred in not making the findings required by Family Code section 4056, and in concluding that Gash had not shown a substantial change of circumstances. [1] We disagree and affirm.

This is a contract termination dispute. DirecTV contracted with Professional Satellite to recruit new customers, but DirecTV terminated the contract without the proper amount of notice. At arbitration, Professional Satellite won in a two-to-one split. DirecTV petitioned the trial court to vacate this arbitration award. We assume without deciding the trial court was right to review the arbitration award for errors of law or legal reasoning. Our review is de novo. ( Gravillis v. Coldwell Banker Residential Brokerage Co. (2010) 182 Cal.App.4th 503, 511.) The trial court concluded the arbitrators made three legal errors. We disagree and therefore reverse the trial court’s order vacating the arbitration award.

I

The parties differed about which document governed their relationship. There were three relevant documents: the 1998 contract, the 2004 contract, and the 2006 contract proposal. The parties agree they signed the 1998 and 2004 documents and thereby created effective contracts. With respect to the 2006 document, DirecTV does not challenge the arbitrators’ majority finding that Professional Satellite never signed the proposal.

Maral Yakoubian, Bedros Yakoubian, Hovsep Yakoubian and Garbis Bedros Yakoubian (collectively, plaintiffs) appeal from the judgment entered after the trial court granted summary judgment for the City of Pasadena (City) in this action for dangerous condition of public property pursuant toGovernment Code section 835. [1] Plaintiffs contend that triable issues of material fact exist as to whether a dangerous condition of public property contributed to the cause of the automobile-pedestrian accident that injured Maral and killed Angele Kazanjian, Maral’s mother. We sympathize with the tragedy of the accident but agree with the grant of summary judgment for the City. We, therefore, affirm the judgment.