CA Unpub Decisions

Plaintiff Arvind Shankar, M.D. appeals the trial court’s order granting the anti-SLAPP motion filed by defendant Jeffrey Chu, M.D. with respect to a cause of action for malicious prosecution. We conclude that plaintiff failed to establish a likelihood of prevailing on this claim, due to insufficient evidence to support his allegation that the underlying lawsuit between the parties terminated in his favor. We therefore affirm the order.

Defendant and appellant First Citizens Bank & Trust Company (First Citizens) and cross-defendant and appellant Continental Casualty Company (Continental)[1] appeal from the trial court’s orders granting the summary judgment motion filed by defendant and respondent Lake Forest Alabama, LLC (Lake Forest) and denying their cross-motion for summary judgment. According to appellants, the trial court erred, inter alia, when it ruled that First Citizens’ predecessor in interest had released and waived, as part of a settlement agreement, any claim against Lake Forest it may have had to certain fire insurance proceeds. Appellants also challenge certain evidentiary rulings made by the trial court, arguing that the rulings were an abuse of discretion.

We hold that the trial court correctly interpreted the express and unambiguous language of the settlement agreement in issue concerning its broad and comprehensive general release of all claims, known and unknown, including any claim against Lake Forest that First Citizens’predecessor may have had to the fire insurance proceeds in issue. We also hold that even assuming that one or more of the trial court’s challenged evidentiary rulings was erroneous, appellants have failed to demonstrate how the challenged ruling prejudiced them. We therefore affirm the orders granting Lake Forest’s motion for summary judgment and denying appellants’ cross-motion, as well as the judgment based thereon.

During the late evening of May 14, 2011, Gutierrez stabbed Alex Anzures in the heart with a folding knife that Gutierrez kept in his pocket. At the time, Gutierrez and Anzures were party guests in the Santa Maria home of Carlos Bustamonte. Gutierrez was "spun out, like all twacked out of his mind," from methamphetamine and marijuana use, and Anzures was heavily intoxicated. The two men did not know each other; they argued at the party following Anzures's comment to Gutierrez's stepsister.

At trial, Gutierrez testified that Anzures attempted to punch him, but missed. Anzures then retrieved a box cutter from his pocket. In response, Gutierrez "stabbed him one time" in claimed self-defense. Anzures stumbled from the kitchen, held his bleeding chest, and declared that he had been "stuck" by Gutierrez.

Despite emergency medical treatment, Anzures died at the hospital. A forensic pathologist later performed an autopsy on Anzures's body and found a lethal wound to the heart and three defensive-type wounds to the right hand and forearm.

Two detectives driving in an unmarked vehicle observed defendant Jose Navarro attempting to burglarize a van parked on the side of the street. After one of the detectives yelled out to Navarro, defendant Freddie Sanchez began moving toward the detectives while shouting and making hand gestures. Seconds later, a third individual, David Ariaz, began shooting at the detectives’ vehicle. The officers returned fire, causing Navarro, Sanchez and Ariaz to flee. Navarro and Sanchez were subsequently arrested and charged with attempted vehicle burglary, shooting at an occupied vehicle, assault with a semiautomatic firearm and various gang enhancements.

At trial, the prosecution argued Sanchez and Ariaz had been serving as lookouts for Navarro as he attempted burglarize the van. It further asserted that, under the natural and probable consequences doctrine, Navarro and Sanchez were criminally liable for Ariaz’s act of shooting. The jury found Sanchez and Navarro guilty on all counts and returned true findings on each gang enhancement allegation.

On appeal, Sanchez argues there was insufficient evidence to prove he aided and abetted Navarro in the attempted burglary. Both defendants also argue there was: (1) insufficient evidence to support their shooting offense convictions or their gang enhancements; (2) prosecutorial misconduct; (3) evidentiary error; and (4) sentencing errors. We conclude the trial court committed sentencing errors. We affirm Sanchez’s judgment as modified, reverse Navarro’s judgment and remand his case for resentencing.

A jury convicted appellant Michael Clark[1] of second degree murder. The victim in this case was Carol Lubahn, appellant’s ex-wife. [2] Carol disappeared in March 1981 and has never been found. Appellant challenges the sufficiency of the evidence. He also contends the court erred in failing to instruct on voluntary manslaughter. We affirm.

Steven Galaviz appeals from the judgment entered following his conviction on one count of first degree murder. (Pen. Code, § 187, subd. (a).)[1] Appellant contends that the trial court erred in instructing the jury and that this error violated his due process rights by lowering the prosecution’s burden of proof to establish that he committed first degree murder. Appellant further contends that the trial court erroneously imposed a 10-year gang enhancement, in contravention of the California Supreme Court’s decision in People v. Lopez (2005) 34 Cal.4th 1002 (Lopez). We conclude that the trial court did not err in instructing the jury. However, we conclude, and respondent concedes, that the 10-year gang enhancement was erroneously imposed pursuant to Lopez. We therefore modify the judgment to strike the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) and to impose in its place the 15-year minimum parole eligibility term under section 186.22, subdivision (b)(5). In all other respects, the judgment is affirmed.

A jury convicted defendant Lachelle Robertson of grand theft of personal property (Pen. Code, § 487, subd. (a)) and procuring and offering false or forged instrument (§ 115, subd. (a), hereinafter, § 115 (a)). [1] The trial court sentenced her to 32 days in county jail and placed her on probation for five years. Defendant appeals contending: (1) there was insufficient evidence to sustain either count; (2) the trial court committed prejudicial error in failing to provide jury instructions on the offense of theft by false pretense; (3) if the trial court did not have a sua sponte duty to instruct on theft by false pretense, defense counsel’s failure to request the instruction constituted ineffective assistance of counsel. We affirm the judgment.

Before his death, Albert W. Duclos retained the services of attorney Kelly W. Bixby (now also deceased) for Mr. Duclos’s divorce from his wife. In the course of that divorce, the family home was sold, and Mr. Duclos’s share of the proceeds was deposited into Mr. Bixby’s client trust account. Mr. Bixby also received for deposit into Mr. Bixby’s client trust account a cashier’s check settling an insurance claim for damage to the family house. None of these funds were ever paid to Mr. Duclos.

Following Mr. Duclos’s death, his estate sought to recover the money during probate proceedings to administer his will. Mr. Bixby failed to respond to a petition filed pursuant to Probate Code section 850 to recover the funds, and a default judgment was entered, ordering Mr. Bixby to turn over more than $317,000 to the estate, and to provide an accounting.

Mr. Bixby failed to provide an accounting, and ultimately filed for bankruptcy protection. The personal representative of the Duclos estate filed a subsequent petition under Probate Code section 859, seeking double damages for Mr. Bixby’s bad faith retention of Mr. Duclos’s money.

Before the hearing on that petition, the bankruptcy court granted the motion of the personal representative of Mr. Duclos’s estate for relief from the bankruptcy stay. However, the order granting relief from the stay was not signed and entered on the bankruptcy court’s docket until after the hearing on the Probate Code section 859 petition in probate court.

The probate court found that Mr. Bixby acted in bad faith, and doubled the damages previously ordered.

After Mr. Bixby’s death, his widow, Sheila Bixby, special administrator of his estate, substituted for her husband to pursue this appeal. Mrs. Bixby asserts a number of arguments on appeal. Among them is her argument that the probate court lacked jurisdiction to conduct the Probate Code section 859 hearing at which the court ordered double damages, because the order granting relief from the bankruptcy stay had not been entered. We agree, and on that basis, we reverse, declining to reach the other arguments asserted on appeal.

Plaintiff Walter Lancaster appeals from a judgment dismissing his legal malpractice action for failure to comply with an order to produce documents and to designate any witnesses for trial or provide the court with complete transcripts of the underlying trial. We find no abuse of discretion, and thus we affirm.

Sarah S. (mother) appeals from an order terminating her parental rights to her son Ryan G. and declaring adoption to be the permanent plan. (Welf. & Inst. Code, § 366.26.) Mother argues the order should be reversed because the beneficial parental relationship and sibling relationship exceptions to adoption apply. (§ 366.26, subd. (c)(1)(B)(i) & (v).) We affirm.

Appellant Joseph Soldis (Soldis) and respondent USAA Federal Savings Bank (usually, the Bank) have a long and checkered history. It began in 1998, when Soldis opened his first checking account at the Bank. Soldis overdrew the account, but did not pay it back, and in 2002 the Bank “charged off” the debt—though the debt remained on the Bank’s books. Soldis opened another account with the Bank, and again overdrew it, leading to a dispute about whether the Bank could set off the prior debt, a dispute that apparently was resolved. In April 2012, Soldis opened yet another account with the Bank, with an initial deposit of $50, which the Bank applied as an offset to Soldis’s debt. In July 2012, Soldis sent a letter to USAA, asserting that the matter had already been settled, and making demands on the Bank, and that it release his debt. This lawsuit followed.
The bank filed a one-count complaint for declaratory relief, alleging this essential dispute: “A dispute and an actual controversy has arisen and now exists between USAA FSB and Soldis as to the respective rights, duties and obligations of the parties under and by virtue of the terms, limitations, conditions, and provisions of the Depository Agreement, in that USAA FSB contends that it is entitled to a setoff due to overdrawn funds, while Soldis disagrees with this assessment.” Soldis filed an anti SLAPP motion, asserting that the Bank’s lawsuit was based on protected activity, his letter to the Bank. The trial court denied the motion, concluding that the Bank’s suit was not based on protected activity. We reach the same conclusion, and we affirm.

In this consolidated appeal, plaintiff Lawyers Title Insurance Company (LTIC) challenges the trial court’s judgment in favor of defendants Jason P. Dedmore and Lisa Biddle-Dedmore (Dedmores), issued after a court trial. LTIC, as an assignee of a home equity line of credit (HELOC) issued by E-Trade, sued the Dedmores following the short sale of their residence. On appeal, LTIC contends the trial court erroneously applied Code of Civil Procedure section 726, also known as the “one form of action rule,” to prevent LTIC from seeking repayment of the HELOC. The one-action rule and the antideficiency laws protect borrowers in default on loans secured by real property. (See §§ 726, 580a-580e.) They are designed to limit the remedies available to lenders for recovery of such debt. We conclude the trial court did not err in preventing LTIC from obtaining repayment of the HELOC by the Dedmores and, accordingly affirm the judgment.

Pursuant to a negotiated disposition, Moises Ramos (defendant) pleaded no contest to two counts of committing a lewd or lascivious act on a child under the age of 14 by force, violence, duress, menace or fear (Pen. Code, § 288, subd. (b)(1), counts one and five); and two counts of committing a lewd or lascivious act on a child under the age of 14. (Id., § 288, subd. (a), counts eight and nine.) In exchange for his no contest pleas, defendant was promised a prison term of 26 years, the dismissal of six more counts, and that the court would strike a multiple victim allegation at the time of sentencing.

Appellant Maria D. (mother) appeals from the juvenile court’s order terminating her parental rights under Welfare and Institutions Code section 366.26[1] as to her five-year-old daughter Michelle. Mother contends the juvenile court erred in declining to apply the exception to adoption contained in section 366.26, subdivision (c)(1)(B)(i), hereafter referred to as the “beneficial relationship” exception. We affirm.