CA Unpub Decisions

On October 13, 2011, Andre Fradiue was at his residence with several acquaintances, including someone named Rico and defendant and appellant Ulysses Miller. Miller and Rico got into an argument. After Miller took out a gun and put it on a table Fradiue told him he had to leave because he did not want a gun in his house. Fradiue and Miller went outside, where they “exchanged a couple of words” about Miller pulling his gun out on people, and which of them was “tripping.” Miller, who had taken the gun outside with him, became upset. Miller and Fradiue were face-to-face, about seven feet apart from one another. Fradiue was not armed. Miller pointed his gun at Fradiue. Believing he could talk him down, Fradiue moved toward Miller telling him he shouldn’t be tripping and asking why he was pointing a gun at people. Miller said he was going to get his other gun and come back and kill everybody. Miller shot Fradiue in the jaw and shoulder. Miller then told Fradiue he “knew [he] was a bitch,” said he was going to get his “9,” and kill everyone and ran away.

On October 13, 2011, Andre Fradiue was at his residence with several acquaintances, including someone named Rico and defendant and appellant Ulysses Miller. Miller and Rico got into an argument. After Miller took out a gun and put it on a table Fradiue told him he had to leave because he did not want a gun in his house. Fradiue and Miller went outside, where they “exchanged a couple of words” about Miller pulling his gun out on people, and which of them was “tripping.” Miller, who had taken the gun outside with him, became upset. Miller and Fradiue were face-to-face, about seven feet apart from one another. Fradiue was not armed. Miller pointed his gun at Fradiue. Believing he could talk him down, Fradiue moved toward Miller telling him he shouldn’t be tripping and asking why he was pointing a gun at people. Miller said he was going to get his other gun and come back and kill everybody. Miller shot Fradiue in the jaw and shoulder. Miller then told Fradiue he “knew [he] was a bitch,” said he was going to get his “9,” and kill everyone and ran away.

Appellant Aaron Jones was charged with one count of kidnapping for robbery in violation of Penal Code[1] section 209, two counts of second degree robbery in violation of section 211, and one count of attempted robbery in violation of section 664/211. It was alleged that a principal personally used a firearm within the meaning of section 12022.53, subdivisions (b) and (e)(1); and that appellant had been convicted of a serious or violent felony within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), had prior felony convictions resulting in two prison terms pursuant to section 667.5, subdivision (b), and had committed the offenses for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(B).
Appellant waived his constitutional rights to a trial, pled guilty to one count of robbery, and admitted the prior strike, firearm use and gang allegations. The trial court imposed the agreed-upon sentence of 20 years, selecting the high term of five years, doubled, plus 10 years for the firearm allegation. Appellant received 124 days of presentence custody credit.
Appellant filed a timely notice of appeal, which states "This appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." We appointed counsel to represent him on this appeal.
After examination of the record, appellant's counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requested this court conduct an independent review of the entire appellate record to determine whether any arguable issues exist. On March 7, 2013, we advised appellant that he had 30 days in which to personally submit any contentions or issues which he wished us to consider. No response has been received.
We have examined the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)

Defendant Quinten White appeals from the judgment entered following a jury trial in which he was convicted of two counts of possession of a firearm by a felon. Defendant contends he was improperly convicted of two counts based upon continuous possession of a single gun, the trial court committed evidentiary error, and territorial jurisdiction was not established for one of the offenses. The Attorney General concedes that the evidence established only a single continuing possession of a single gun, and thus permitted only one conviction. We reverse defendant’s conviction as to one of the two counts, but otherwise affirm.

April Armena Pitts was convicted of second degree robbery, and the jury found true that she personally and intentionally discharged a handgun and personally inflicted great bodily injury. Pitts was sentenced to 30 years to life. She appeals the trial court’s denial of her new trial motion, arguing that her trial counsel provided ineffective assistance in failing to present evidence that someone else committed the robbery. We affirm.

On June 23, 2010, Dhaliwal filed a complaint against Westlund. Westlund demurred, and the trial court sustained the demurrer with leave to amend. Dhaliwal filed a first amended complaint on September 10, 2010, naming Westlund and Charanjeet Kaur[1] as defendants. Westlund’s answer asserted the statute of limitations as an affirmative defense.
The complaint alleged that Westlund was the owner and managing member of The Starting Gate, LLC (Starting Gate). On April 4, 2008, Westlund entered into an oral contract with Dhaliwal to sell the business to Dhaliwal for $500,000 by October 4, 2008, by transferring Westlund’s interest in Starting Gate to Dhaliwal. Dhaliwal paid Westlund $50,000 in cash. Westlund breached the agreement because he did not transfer the business to Dhaliwal and refused to return the $50,000. Westlund also defrauded Dhaliwal by falsely representing that he would sell the business to Dhaliwal, with the intent of inducing Dhaliwal to act in reliance on that representation. Dhaliwal paid Westlund $50,000 with the expectation that Dhaliwal would be able to complete the purchase of the business. Kaur was Dhaliwal’s agent, and she negligently failed to competently advise Dhaliwal about the purchase. The complaint alleged causes of action for breach of contract, negligence, fraud, money had and received, and declaratory relief.

In a prior lawsuit, an employee represented by successive attorneys sued his corporate employer and two managerial employees—a husband and wife—alleging violations of wage and hour laws codified in the Labor Code and other claims. At trial, the employee prevailed on his Labor Code claims against the corporate employer and the husband, who was found to be an alter ego of the corporation. The wife was exonerated on all claims.
The wife then filed the present action against the employee and all of his attorneys, alleging claims for malicious prosecution, abuse of process, and defamation, among others. The attorneys and the employee responded with a special motion to strike, contending the action was a strategic lawsuit against public participation (SLAPP) (Code Civ. Proc., § 425.16; undesignated section references are to that code). The trial court granted the motion. This appeal followed.
We conclude the trial court properly found that all of the wife’s causes of action fall within the scope of the anti‑SLAPP statute and that she did not demonstrate a reasonable likelihood of prevailing on her claims. We therefore affirm.

We are asked to determine whether an insurer has a duty to defend its insureds who are sued by a neighbor for emotional distress damages, including bodily injury, based on the insureds’ maintaining trees and a hedge “in excess of six feet” on the insureds’ rental property. Alda Shelton and Jon Sherman (collectively, plaintiffs) appeal from a judgment entered after the trial court granted a motion for summary judgment of Fire Insurance Exchange (Exchange) against plaintiffs’ complaint for declaratory relief, bad faith breach of insurance contract, and breach of contract. Plaintiffs contend that the court erred in granting summary judgment because Exchange had a duty to defend plaintiffs against the neighbor’s claim that she allegedly had suffered bodily injury arising from emotional distress resulting from “continuous and repeated exposure to the same condition”—the untrimmed foliage and resulting blind intersection—caused by plaintiffs’ negligent acts. Plaintiffs also contend that Exchange had a duty to defend even against a meritless suit. We agree because a triable issue of material fact exists as to whether there is a potential for coverage. Accordingly, we reverse the judgment.

Before trial, defendant and appellant Fabian Javon Rodriguez moved to suppress evidence of a gun and ammunition. The trial court denied the motion, and a jury found defendant guilty of corporal injury on a cohabitant and of possession of a firearm by a felon. On appeal, he contends that the trial court erred by denying the suppression motion and, also, by denying his Romero[1] motion. We reject both contentions and affirm the judgment.

Defendant Tonya Dacosta appeals from the judgment entered following a jury trial in which she was convicted of child abuse. Defendant contends the prosecutor engaged in prejudicial misconduct, and the trial court should have granted her motion for a mistrial. We agree that the prosecutor engaged in prejudicial misconduct when she introduced evidence the trial court had ordered excluded. Accordingly, we reverse.

This appeal is about errant golf balls and the $2.15 million sale of a residence at the Spanish Hills Country Club. Appellants, Carolyn Master and Mark E. Moore, purchased the property knowing that it fronted a golf course fairway. They were told that errant golf balls would land on the property. (See e.g., Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1231.) Stray golf balls were such a common problem that the CC&R's required homeowners to (1) acknowledge the risks of property damage caused by errant gold balls, (2) assume the risk of property damage, personal injury, or death caused by errant golf balls, and (3) release, waive, discharge, and covenant not to sue past or present homeowners for liability arising out of errant golf balls.
Appellants sued the former owners (respondents Scott Burton and Linda Burton) and the Burtons' relocation company (respondents Executive Relocation dba SIRVA Relocation, LLC and SIRVA Relocation Credit, LLC (collectively SIRVA)) for concealment/non-disclosure of an errant golf ball hazard. Having lost at trial, appellants appeal from an order granting summary adjudication on a breach of contract cause of action and appeal from the judgment entered in favor of the Burtons and SIRVA on a rescission cause of action. The Burtons, in a separate appeal (B239447), contend that the trial court erred in denying their motion for $1.35 million attorney fees (Civ. Code § 1717) and ordering them to pay $45,000 discovery prove up costs (Code Civ. Proc., § 2033.420). We affirm.

Z.S. (mother) seeks review by extraordinary writ of a juvenile court order setting a hearing, pursuant to Welfare and Institutions Code section 366.26,[1] to make a permanent plan for mother’s son, I.S., who is now a three-year-old. Mother contends the juvenile court erred by (1) making a jurisdictional finding that mother committed a deliberate act of cruelty toward I.S.; (2) denying mother reunification services; and (3) denying a relative placement for I.S. with his maternal grandmother. We reject these contentions and deny the writ on the merits.

In November 2012, the juvenile court issued an order barring appellant Jose S., Sr. from the presence of his three minor children unless he was participating in court-ordered visitation. The father challenges this order in a timely appeal.[1]

Carolina C. Rynda (Carolina) appeals an order denying her postjudgment motion for property division in a marital dissolution proceeding. The court found there was no property to divide following Carolina’s declaration of bankruptcy and a trustee sale of assets to Carolina’s ex-husband, David J. Rynda (David). We shall affirm the order.