CA Unpub Decisions

In these three consolidated appeals, two men, both of whom had previously dated the same woman and later allegedly became involved in offensive e-mails, appeal from different orders of the Sonoma County Superior Court. Plaintiff Martinez, appearing in pro per, appeals from that court’s (1) grant of summary judgment to defendant Neema from Martinez’s first amended complaint alleging libel, libel per se, abuse of process, intentional infliction of emotional distress, and conspiracy and (2) subsequent order imposing sanctions on him. Neema appeals from (3) the trial court’s order denying him further sanctions against Martinez.
We affirm the trial court’s grant of summary judgment against Martinez and in favor of Neema, and also both of its orders regarding the award of sanctions.

This appeal challenges an order awarding attorney fees pursuant to the private attorney general doctrine. (Code Civ. Proc., § 1021.5.) In Sierra Club v. County of Solano (Jul. 31, 2013, A130682, A130734, A130735) [nonpub. opn.] (Sierra Club)), we reversed the judgment on which the attorney fee award was based. The appellants in this appeal filed a motion seeking to summarily reverse the attorney fee award in light of our decision in Sierra Club. We grant the motion.

Defendant Rogelio Nava appeals from the judgment entered following the trial court’s finding that he violated the terms and conditions of probation. He contends the court erred by ordering him to pay restitution to a victim and failing to either impose or strike a sentence for an enhancement. The Attorney General agrees with defendant and also requests that we order the abstract of judgment amended to reflect the imposition of mandatory fines. We will vacate the restitution order and direct the superior court to correct the abstract of judgment.

At the defendant's request, prior to sentencing him, the trial court in this case conducted a Marsden[1] hearing at which the defendant asked that new counsel be appointed for the purpose of filing a motion to withdraw his earlier plea. At the hearing, the trial court examined defendant and his counsel with respect to counsel's representation and the basis for a motion to withdraw. Based on what it learned from the defendant and his counsel, the trial court determined that the defendant had been adequately represented and that there was no basis upon which a motion to withdraw the plea could be made.
The trial court's determinations are fully supported by the record. Accordingly, we affirm the judgment of conviction.

These appeals are from an order granting in part and denying in part a special motion to strike Carl Kahn's claims against Timothy P. Dillon and his law firm, Dillon & Gerardi, APC (collectively Dillon), for malicious prosecution and abuse of process based on Dillon's representation of a client in a prior action against Carl and his sister Margaret Kahn.[1] Carl appeals the portion of the order striking the abuse of process claim, and Dillon appeals the portion refusing to strike the malicious prosecution claim. We affirm.

Anthony E. Kalikas and American Contractors Indemnity Co. (together Cross-defendants) appeal a judgment entered against them on the cross-complaint for wrongful attachment filed by defendants William (Bill) Mastrodimos and Margaret O'Byrne, as cotrustees of the Mastrodimos/O'Byrne Family Trust (Family Trust) and William Mastrodimos, as trustee of the Country Comfort Trust (CC Trust) (together Defendants). On appeal, Cross-defendants contend the trial court erred (1) in interpreting Civil Code section 3439.07[1] as not independently authorizing the provisional attachment of Defendants' property pending Kalikas's fraudulent transfer action against them, and (2) finding Kalikas wrongfully levied on Defendants' property. Based on our reasoning below, we conclude the trial court correctly interpreted section 3439.07 and found Kalikas wrongfully attached Defendants' property.

Constance J. Messina appeals from summary judgment in favor of the Escondido Union High School District (District) on her complaint for, among other causes of action, age discrimination and failure to reasonably accommodate her disability in violation of California's Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) She contends the trial court improperly excluded certain evidence she offered in opposition to the District's summary judgment motion. She further contends her evidence raised triable issues of material fact as to (1) whether the District's stated reasons for not rehiring her after her probationary period were pretextual, and (2) whether the District's accommodations of her disability were timely. We agree the court erred in excluding some of Messina's evidence. However, even after considering the improperly excluded evidence, we conclude the court correctly determined the District was entitled to summary judgment. We, therefore, affirm the judgment.

Mother and father appeal the juvenile court’s order terminating their parental rights to two-year-old Martin and one-year-old Nathaniel. They contend the juvenile court abused its discretion by denying father’s request to continue the Welfare and Institutions Code section 366.26 hearing.[1] We conclude the juvenile court did not abuse its discretion in denying the continuance. We affirm the order.

During a prison disturbance, defendant Steven Jones punched a correctional officer in the face. An information charged defendant with battery on a nonconfined person by a prison inmate and possession of a sharp instrument by an inmate. (Pen. Code, §§ 4501.5, 4502, subd. (a).)[1] A jury found defendant guilty on both counts and the court sentenced him to two consecutive 25-years-to-life terms. On appeal, defendant argues the trial court’s decision to shackle him at trial was made in the absence of manifest necessity, and the court committed instructional error and sentencing error. We shall affirm the judgment.

Plaintiff Tough Company, Inc. appeals from a judgment entered in favor of defendant George Wurlitzer after the trial court rejected its assertion that defendant had no right to repossess equipment he sold to plaintiff after plaintiff failed to pay in full.
On appeal, plaintiff contends (1) there was insufficient evidence to support the court’s finding defendant retained a security interest in one item of equipment, a bulldozer; and (2) as a matter of law, no security agreement could have been created under the circumstances. Plaintiff also contends the trial court erred in hearing its new trial motion in the absence of plaintiff’s counsel. We find no error, and affirm the judgment.

Wesley Dehne, a state prison inmate serving a sentence of 325 years to life under the three strikes law, filed a petition to recall his sentence pursuant to Penal Code section 1170.126.[1] The superior court denied the petition on the basis that Dehne’s current convictions—11 counts of second degree robbery—are violent felonies as defined in section 667.5, subdivision (c)(9), rendering Dehne ineligible for resentencing under section 1170.126. Dehne filed a notice of appeal from the decision denying the petition to recall the sentence.
This court appointed counsel to represent Dehne on appeal from the order. On November 20, 2013, appointed counsel filed a brief raising no issues, asking this court to independently review the record for arguable appellate contentions under People v. Wende (1979) 25 Cal.3d 436. Dehne was advised by letter on November 21, 2013, of his right to file a supplemental brief within 30 days. The 30-day period to respond has lapsed, and no supplemental brief has been filed by Dehne.
We have completed our independent review of the record. Our review reveals no arguable contentions on appeal. Dehne is statutorily ineligible for relief under section 1170.126, subdivision (b), because his current convictions are violent felonies as defined in section 667.5, subdivision (c)(9). The order denying the petition is affirmed. (Smith v. Robbins (2000) 528 U.S. 259.)

Later, Rodriguez was charged with robbery (Pen. Code, § 211), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and petty theft (Pen. Code, §§ 484, subd. (a), 666.) A deadly weapon (screwdriver) use allegation was alleged as to all three counts (Pen. Code, § 12022, subd. (b)(1)). A 1999 prior conviction for robbery was alleged as a prior “strike” and a prior-five-year serious felony conviction enhancement (Pen. Code, §§ 667, 1170.12). This, and three other prior convictions, were alleged as one-year prior prison term enhancements (Pen. Code, § 667.5, subd. (c)).
Following the denial of Marsden[1] and Faretta[2] motions, Rodriguez waived his trial rights, pled no contest to the robbery charge, and admitted the prior strike and serious felony conviction allegations. He was immediately sentenced to a nine-year term in prison, which represented the two-year lower term, doubled to four years because of the strike, plus the five-year enhancement for the same prior conviction. Presentence credits were awarded and mandatory fines were imposed.
Rodriguez filed a notice of appeal.
Counsel was appointed to represent Rodriguez in connection with this appeal. After examination of the record, counsel filed an “Opening Brief” in which no arguable issues were raised. On November 1, 2013, we advised Rodriguez that he had 30 days within which to personally submit any contentions or issues for us to consider. No response has been received to date.

D. F. (mother) and D. B. (father) appeal from the dependency court’s order of May 21, 2013, placing parents and L. B. (“L.”), D. B. (“D.”), and D. B. (“D. B.”) (hereinafter, the children) under the supervision of the social worker pursuant to Welfare and Institutions Code[1] section 360, subdivision (b),[2] after sustaining a section 300 petition. They contend substantial evidence does not support the sustained allegations that their drug use creates a risk of harm to the children. We affirm.

Defendant and appellant Corey Sullivan entered into a case settlement agreement with the prosecution in which he (1) plead no contest to two counts of second degree robbery (Pen. Code, § 211);[1] (2) admitted suffering a serious or violent felony conviction (§ 667, subd. (a)), and a conviction under the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); (3) admitted that one of the robberies was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); and (4) admitted that a principal in one of the robberies was armed with a deadly or dangerous weapon (§ 12022, subd. (a)(1)). Pursuant to the settlement agreement, nine additional felony counts were dismissed and defendant was sentenced to 28 years in state prison.
Defendant filed a notice of appeal. The notice indicated the appeal is based on the sentence or other matters occurring after the appeal, and the appeal challenges the validity of the plea or admission. Defendant’s request for a certificate of probable cause was denied by the trial court.
This court appointed counsel to represent defendant on appeal. On December 11, 2013, appointed counsel filed a brief raising no issues, asking this court to independently review the record for arguable appellate contentions under People v. Wende (1979) 25 Cal.3d 436. Defendant was advised of his right to file a supplemental brief within 30 days. Defendant’s request for an extension of time to file his supplemental brief was granted.
On January 14, 2014, defendant filed a supplemental brief raising multiple issues, including improper denial of his motion for severance, insufficiency of the evidence to support his conviction as an aider and abettor, erroneous failure to dismiss the gang enhancement allegation, ineffective assistance of trial counsel due to a failure to advise defendant regarding potentially meritorious grounds for appeal and urging defendant to accept the case settlement rather than risk 94 years in prison if convicted at trial, and his guilty plea was involuntary.