CA Unpub Decisions

Appellant Freeman Parker entered into a plea agreement that resulted in his conviction of a misdemeanor charge of possessing more than 28.5 grams of marijuana. (Health & Saf. Code, § 11357, subd. (c).) The plea was entered after a motion to suppress evidence of the marijuana was denied. On appeal, Parker argues that the motion was wrongly denied because the marijuana was obtained incident to an unlawful arrest. We disagree and affirm.

Another appeal in an anti-SLAPP case. Another appeal by a defendant whose anti-SLAPP motion failed below. Another appeal that, assuming it has no merit, will result in an inordinate delay of the plaintiff’s case and cause him to incur more unnecessary attorney fees. (See Grewal v. Jammu (2011) 191 Cal.App.4th 977, 1002‑1003.) And no merit it has. We thus affirm, concluding, as did the trial court, that plaintiff’s lawsuit is not based on protected activity.

Defendant London Willard was convicted by a jury of grand theft. His sole claim on appeal is that his restitution fine should be reduced from $720 to $600. We affirm.

Mohammad Dastmalchi brought several causes of action against defendants Yavor Trandev, Julio Rodriguez, and OOC, Inc. (OOC) in the Alameda County Superior Court. They were based on his allegations that, while working for OOC, he was assaulted by Trandev and Rodriguez, who were acting within the scope and duties of their employment with OOC, resulting in his physical injury and termination of employment. Dastmalchi appeals from the judgment in favor of defendants, entered after a jury trial verdict against him. We affirm the judgment because Dastmalchi has not provided a sufficient record to overcome the presumption that the judgment is correct.

Plaintiff Barbara Dobard, appearing in propria persona, sued defendants Sharon Torres, Rick Poulin, and Allstate Insurance Company (collectively Allstate) as a third party claimant, following an automobile accident with an Allstate policy holder. After granting Dobard two additional chances to file a viable complaint, the trial court sustained Allstate’s demurrer to her second amended complaint without leave to amend and entered judgment against her. We affirm the judgment of dismissal.

A jury convicted defendant Hans Derik Hanson (appellant) of several offenses, including assault with a deadly weapon and criminal threats, and he was sentenced to a total prison term of six years eight months. On appeal, he contends there was prejudicial error because a prosecution witness made reference to his postarrest invocation of his right to silence and the eight-month sentence imposed on the criminal threats charge must be stayed under section 654 of the Penal Code.[1] We conclude appellant’s section 654 claim has merit, and also direct the superior court to delete an indication in the abstract of judgment that the assault was a violent felony. In all other respects, we affirm.
Procedural Background
In May 2012, the Humboldt County District Attorney filed an information charging appellant with assault with a deadly weapon (§ 245, subd. (a)(1); count one); false imprisonment by violence (§ 236; count two); issuing criminal threats (§ 422; count three); and misdemeanor battery on a police officer (§ 243, subd. (b); count four). The information also alleged sentencing enhancements for seven prior prison terms (§ 667.5, subd. (b)).

Tina Yesson, successor trustee of the John C. Enrico 1999 Revocable Living Trust, appeals from the order of the Sonoma County Superior Court denying her petition for an order determining that she, as the trustee of her father’s trust, had the right to sell the taxi permit (also known as a taxi medallion) held by her father at the time of his death, under the Taxi Medallion Sales Pilot Program (Pilot Program) adopted by respondent San Francisco Municipal Transportation Agency (SFMTA). The court concluded that neither the medallion nor the right to sell the medallion became the property of the decedent or of his estate or trust as a result of SFMTA’s authorization of the Pilot Program. We shall affirm the trial court, but on the alternative grounds found “persuasive” by the trial court, that the Pilot Program did not go into effect until March 28, 2010, after Enrico’s death.

Plaintiff and appellant Gelareh Rahbar, DDS., appeals from an order by the trial court granting defendant and respondent Jennifer Batoon’s special motion to strike the complaint pursuant to section 425.16 of the Code of Civil Procedure (anti-SLAPP motion).[1] We affirm.
Facts and Procedural Background
Rahbar is a dentist who provided a course of dental treatment to Batoon. Subsequently, Batoon wrote a negative review about the treatment provided by Rahbar on an Internet consumer Web site called “Yelp.” This appeal involves the third legal proceeding Rahbar has brought against Batoon arising from her negative Yelp review of Rahbar’s dental services.
In September 2009, Rahbar sued Batoon for defamation and invasion of privacy based on the Yelp review, as well as breach of contract based on an alleged outstanding balance for dental services provided (complaint #1). Batoon filed an anti-SLAPP motion. The court granted the motion and denied reconsideration. In July 2010, the court entered judgment in favor of Batoon in the amount $43,035 in attorney fees for prevailing on the anti-SLAPP motion, offset by $454 in settlement of the contract claim. Rahbar did not appeal. (Rahbar v. Batoon (Oct. 16, 2012, A132294) [nonpub. opn.].) [2]

Defendant Cody Munoz was convicted by jury of robbery, receiving stolen property and petty theft. On appeal, he contends (1) the jury instructions permitted the jury to convict him of robbery without proof beyond a reasonable doubt of all elements of the offense, (2) the evidence was insufficient to support the petty theft conviction, and (3) he could not be convicted of both robbery and receiving the property stolen in the robbery. The Attorney General concedes the receiving stolen property conviction must be reversed. We reverse that conviction, but we reject Munoz’s other arguments and, therefore, affirm the judgment in all other respects.

Defendant PENSCO Trust Co., Inc. (PENSCO) served as custodian for plaintiffs’ self-directed individual retirement accounts (IRA’s). As an IRA investment, each plaintiff elected to purchase a share in secured promissory notes originated by a business known as “Cedar Funding.” Before releasing funds from a plaintiff’s IRA in connection with these investments, PENSCO required Cedar Funding to submit a letter of instructions signed by the plaintiff, along with documents associated with the transaction.
Cedar Funding ultimately went bankrupt, and an investigation revealed it had generally failed to execute the assignments under which its investors were to receive their shares in the promissory notes. When plaintiffs examined the communications between Cedar Funding and PENSCO, they found Cedar Funding had regularly submitted unsigned versions of such documents to PENSCO in connection with their own investments. PENSCO had released the IRA funds to Cedar Funding without ever notifying plaintiffs of the submission of unsigned documents.
Plaintiffs sued PENSCO, contending its release of funds in response to the submission of unsigned documents constituted, among other claims, a breach of the agreement between PENSCO and its clients. The trial court granted summary judgment for PENSCO, concluding PENSCO was under no obligation under its agreement to detect the omission and notify plaintiffs. Concluding a trier of fact could find a breach of the agreement on the basis of the limited evidence submitted in connection with the summary judgment motion, we reverse.[1]

Maurice Hanks, Jr., appeals from convictions of illegal possession of a firearm and ammunition. He contends the trial court erred in denying his motion to suppress evidence seized in what he claims was an unlawful detention and search of his person. We affirm.

Objector Norman Bartsch Herterich appeals from the probate court’s ruling on a motion summary judgment in favor of respondent Arndt Peltner. The probate court granted summary judgment, holding that objector is not a pretermitted heir within the meaning of Probate Code[1] section 21622. That section permits a child to correct a mistaken or inadvertent omission from a testamentary instrument upon proof that the decedent was unaware of the child’s birth at the time of execution. The court further found decedent Hans Herbert Bartsch had intentionally disinherited objector, having included a valid disinheritance clause in the subject will. We affirm.

Isabelita Nopuente (Nopuente) appeals from the judgment entered in favor of respondents[1] on her cross-complaint following the trial court’s grant of respondents’ summary judgment motion and its denial of Nopuente’s motion for leave to amend her cross-complaint. We affirm, concluding that Nopuente’s claims against respondents are barred by the res judicata doctrine and the trial court did not err in denying Nopuente’s motion for leave to amend.

Defendant Timothy Scott Palmer pleaded no contest to several felony charges pursuant to a negotiated disposition. He challenges the sentence thereafter imposed by the trial court. Specifically, he contends the court was unaware it had discretion under Penal Code section 1385[1] to strike an out-on-bail enhancement and thus erroneously believed it had no choice but to add two years, consecutively, to his prison sentence. He asks for a remand to allow the court to consider whether to exercise its discretion under that statute.
Defendant never asked the trial court to exercise its discretion under section 1385, however, and therefore has waived the issue on appeal. Alternatively, we have considered whether defendant has a claim of ineffective assistance of counsel (IAC) for failure to raise section 1385 that would entitle him to the relief he seeks. We conclude there is no basis in the record for such a claim, and affirm the judgment.