CA Unpub Decisions

After Kevin Lee Goyette took merchandise from a department store without paying for it on January 6, 2012, he was charged in a three-count felony complaint with second degree burglary, grand theft and driving on a suspended license (Super. Ct. L.A. case No. MA055342).[1]
Represented by appointed counsel, Goyette waived his right to a preliminary hearing and agreed to plead no contest to second degree burglary on April 6, 2012. As part of the negotiated agreement the remaining counts were to be dismissed and Goyette placed on three years of formal probation on condition he serve five days in county jail with credit for time served. At the time he entered his plea, Goyette was advised of his constitutional rights and the nature and consequences of his plea. Goyette stated he understood and waived his constitutional rights, acknowledged he understood the consequences of his plea and accepted the terms of the negotiated agreement. The trial court found a factual basis for the plea based upon the police report and expressly found Goyette’s waivers and plea were voluntary, knowing and intelligent. The court ordered Goyette to return to court for sentencing on April 26, 2012.
On April 11, 2012 Goyette was arrested after police seized ammunition from his house during a protective sweep. Goyette was charged in a felony complaint in case No. MA055877 with possession of ammunition by a felon with an allegation that, at the time of the offense, Goyette had been released from custody on bail or his own recognizance in case No. MA055342.

Patrick T. (father) appeals from an order returning his children, L.T. and A.T., to their mother after they were declared dependents of the court. We conclude substantial evidence supports the order and affirm.

Marty Lyn Polloreno was charged in an information with the attempted willful, deliberate and premeditated murder of Ruben Pacheco (Pen. Code, §§ 187, subd. (a), 664, count 1)[1] and assault with a deadly weapon (§ 245, subd. (a)(1), count 2). As to the attempted murder count it was specially alleged Polloreno had personally used a deadly weapon to commit the offense (§ 12022, subd. (b)(2)). As to both counts the information specially alleged Polloreno had personally inflicted great bodily injury on Pacheco in committing the offenses (§ 12022.7, subd. (a)). Represented by retained counsel, Polloreno pleaded not guilty to the charges and denied the special allegations.

Plaintiff was arrested after defendant reported to police that plaintiff was trafficking in prescription drugs. Plaintiff sued defendant for, inter alia, defamation and false imprisonment, alleging its report to police was false. Defendant denied the allegations and specially moved to strike the complaint as a strategic lawsuit against public participation (SLAPP) pursuant to Code of Civil Procedure section 425.16, arguing its police report constituted protected activity and plaintiff could not establish a probability of prevailing on the merits. Plaintiff filed no opposition to the motion but the trial court nevertheless denied it, concluding it had to accept as true the allegation that the police report was false and finding defendant’s making of a false report was unprotected activity.
The trial court erred. Although making a false police report is not protected activity, when a defendant specially moves to strike a complaint under Code of Civil Procedure section 425.16 the court cannot accept as true plaintiff’s mere allegation that defendant’s police report was false. If no admission or uncontroverted evidence, as opposed to bare allegations, establishes that a police report was false, the making of the report is protected activity subject to the protections of the anti-SLAPP statute. Because defendant’s conduct was protected and plaintiff failed to demonstrate a reasonable probability of prevailing on the merits, defendant’s motion to strike should have been granted. We therefore reverse the trial court’s ruling.

Defendant and appellant Andrew Lee Young (defendant) appeals his judgment entered on remand June 11, 2012, after we reversed his prior sentence in a nonpublished opinion. (People v. Young (Jan. 10, 2012, B227428).) Defendant’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On January 23, 2013, we notified defendant of his counsel’s brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered, and granted additional time to April 1, 2013. That date has passed and defendant has submitted no letter or brief. We have reviewed the entire record and find that the trial court neglected to comply with our directions on remand in just one respect: correcting the fees previously imposed at sentencing. We thus modify the judgment, but finding no other error or other arguable issues, we otherwise affirm.

Defendant and appellant Gustavo Antolin Molina (defendant) appeals from his conviction of transporting marijuana, challenging the denial of his motion to suppress evidence. We conclude the trial court did not err in denying the motion and we affirm the judgment.

Defendants appeal from a default judgment entered after the trial court denied defendants’ motion to set aside default. We reverse.

In this class action on behalf of sanitation truck drivers employed by the City of Los Angeles, the trial court granted class certification and ruled in the plaintiffs’ favor on the certified liability issue. Upon the parties’ stipulation the court then severed one individual plaintiff from the class, heard that plaintiff’s damage claim, and entered judgment for $8,304.08 against the City of Los Angeles for its failure to provide that plaintiff with “off duty” meal breaks on 310 occasions. The claims of the remaining class members were stayed pending the outcome of this appeal.[1]
The City of Los Angeles seeks reversal of the judgment, contending that the trial court erred in imposing liability against it on two grounds: that as a charter city it is exempt from the Labor Code and wage order provisions on which the liability determination rests; and that in any event its rules and regulations do not render the meal breaks of its sanitation truck drivers on-duty meal breaks, rather than off-duty meal breaks, as the trial court ruled they do. We conclude that with respect to its sanitation truck drivers, the City is not exempt from the state-law rules relating to meal breaks; and that the constraints placed on the plaintiff sanitation truck drivers during the meal breaks provided by the City’s rules render them on-duty meal breaks, for which compensation is required. We therefore affirm the judgment in favor of the individual plaintiff and against the City of Los Angeles.

Plaintiff and appellant Fuchs & Associates, Inc. (Fuchs) appeals from an order awarding $21,125 in attorney fees to defendant and respondent Elke Lesso (Lesso) as the prevailing party in a dispute concerning unpaid legal fees. Judgment was entered in Lesso’s favor following an arbitration proceeding initiated by Fuchs in which the arbitrator concluded that Fuchs was not entitled to any fees, costs, or damages.[1] We affirm the trial court’s order.

The litigation involving this matter had its source in a purported broken romantic relationship which led to allegations of violence and a need for a restraining order from the Los Angeles County Superior Court. The gravamen of the issue on appeal pertains to who started the fight initially which resulted in the orders issued by the Superior Court and not whether a fight occurred. Ultimately, the trial court primarily emphasized the need for its orders and placed a secondary importance on just who initially perpetrated the fight, and the reliability of the evidence in support thereof. For the reasons hereafter explained, we affirm the judgment of the trial court.

Harvey E. Singleton appeals from the judgment entered following his conviction on one count of indecent exposure in violation of Penal Code section 314, subdivision 1.[1] We affirm.

Defendant and appellant Sammy Marshall (defendant) appeals from the judgment entered after a jury convicted him of attempted first degree murder, in violation of Penal Code[1] sections 664 and 187, subdivision (a) (count 1) and second degree robbery in violation of section 211 (count 2). The jury found as to both counts that defendant had personally used a firearm, within the meaning of section 12022.53, subdivision (b), and that he personally discharged that firearm within the meaning of section 12022.53, subdivision (c).

Appellants Ebrahim Bagheri and Ghamar Fazlelahi appeal from the order entered in favor of respondent Nazila Adeli-Nadjafi denying appellants’ anti-SLAPP motion as untimely because the motion, filed by facsimile, was not printed until after the clerk’s office closed for the day. Appellants claim the trial court erred in finding their motion untimely. In addition, appellants assert the trial court erred in denying their nunc pro tunc motion without reviewing its merits. As will be explained, the trial court erred when it found appellants’ anti-SLAPP motion was untimely. There is no clear definition of when a filing via facsimile (fax) has been received by the clerk’s office. The ambiguity in the rules leads to conflicting interpretations. In addition, appellants presented evidence that they transmitted the motion prior to 4:30 p.m. via their fax transmission report and there was no evidence respondent suffered prejudice as a result of appellants’ filing. Accordingly, we reverse and remand to the trial court.

Larry Flores (appellant) appeals from a judgment entered after a jury found him guilty of assault with a deadly weapon. The trial court sentenced him to six years in prison on the offense plus an enhancement described below. Appellant contends the trial court abused its discretion in responding to a question from a juror regarding the difference in height between appellant and his brother, who were standing near each other at the time of the incident.