CA Unpub Decisions

Jean Lambey (defendant) appeals following the denial of her motion to vacate her 1998 guilty plea to one count of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1).[1] The trial court granted defendant’s request for a certificate of probable cause.
We appointed counsel to represent defendant on this appeal. After examination of the record, counsel filed an “Opening Brief” containing an acknowledgment that she had been unable to find any arguable issues. On May 1, 2013, we advised defendant that she had 30 days within which to personally submit any contentions or issues that she wished
us to consider. No response has been received to date.
The record shows that, on July 23, 2012, defendant filed a motion to vacate her 1998 guilty plea based on ineffective assistance of counsel. In the motion, defendant stated that she did not recall her attorney at the taking of the plea asking her if she was a United States citizen or advising her that the guilty plea would permanently and negatively affect her immigration status and future applications. Her attorney did not advise her to consult an attorney with specialized knowledge of United States immigration laws.

Lara R. (Mother) is the mother of three children, including Adam.[1] On the day Adam was born in September 2010, Mother tested positive for cocaine and opiates. After his release from the hospital, Adam was placed with foster parents Cecilia and Ricardo C.
Interviewed by the caseworker, Mother admitted using methamphetamine in the past, but denied having used drugs during the prior three years and denied ever using cocaine or opiates.[2] Mother reported that although Father had a history of drug use, he had been clean for three years and was willing to care for the baby.[3] Father reported that he suspected Mother had used drugs five months earlier, but that cocaine and opiates had never been her drugs of choice. He was willing to care for Adam, but did not have a stable residence. He said he was residing with friends and using his mother’s address as his mailing address. His mother reported that Father had been working and doing well for the past three years.[4]

Appellant Robert M. (Father) appeals the juvenile court’s summary denial of his petition for modification under Welfare and Institutions Code section 388.[1] We affirm. The expert testimony Father sought to present in his petition nine months after the jurisdictional/dispositional hearing was based on evidence available at the time of the hearing. Accordingly, the court was not compelled to grant a hearing. (In re H.S. (2010) 188 Cal.App.4th 103.)

Karen Roxanna Guth appeals the denial of a $175,000 homestead exemption following the court-ordered sale of her $3.2 million residence to pay victim restitution. (Pen. Code, §§ 1202.4, subd. (f); 186.11, subds. (h) & (i).)[1] The property was assigned and transferred to the San Luis Obispo County District Attorney pursuant to a negotiated plea in which appellant pled guilty to 26 counts of securities fraud (Corp. Code, §§ 25110, 25401, 25541) and admitted various enhancements including an aggravated white collar crime enhancement (§ 186.11, subd. (a)(2).) In exchange for a 12-year state prison sentence, appellant was ordered to pay approximately $200,000,000 victim restitution to more than 900 victims. The plea agreement provided that the property would be sold by a court-appointed receiver and the sale proceeds distributed to appellant's victims and creditors pursuant to section 186.11.
Appellant contends that the disbursement of all the sale proceeds to the victims violates her right to a $175,000 homestead exemption. (Code Civ. Proc., §§ 704.720; 704.730, subd. (a)(3).) We dismiss the appeal on the ground that it attacks a key component of the plea agreement and is barred by appellant's failure to obtain a certificate of probable cause as required by section 1237.5.

Gregorio Aguilar appeals from the judgment entered after a jury convicted him of first degree murder with the special circumstance finding that the murder was committed during an attempted robbery (count 1; Pen. Code, §§ 187, subd. (a); 190.2, subd. (a)(17)(A))[1], attempted second degree robbery (count 2; 664/211), second degree robbery (count 3; § 211), and attempted second degree robbery (count 4; §§ 664/211). The jury found that appellant personally and intentionally discharged a firearm causing death in counts 1 and 2 (§ 12022.53, subd. (d)), and personally used a firearm in counts 3 and 4 (§ 12022.53, subd. (b)). Appellant was sentenced to a determinate term of 17 years state prison on counts 3 and 4, and, on count 1, to a consecutive indeterminate term of life without possibility of parole plus 25 years to life on the firearm use enhancement.[2]
Appellant contends that his sentence of life without parole for special circumstance first-degree murder, plus 25 years to life on the firearm use enhancement (§12022.53, subd. (d)) violates California's multiple conviction rule and federal double jeopardy principles. We affirm with directions to issue an amended abstract of judgment.

In July 2008, plaintiff and appellant Toni Lawrence (Lawrence) rented a West Hollywood apartment to real parties in interest Charles Gant and Sonya Burtnett (Gant and Burtnett). In June 2011, Lawrence informed Gant and Burtnett that they owed her $42,194 in back rent, leading Gant and Burtnett to file a Maximum Allowable Rent (MAR) request with defendant and respondent, the City of West Hollywood (City). After an administrative hearing in August 2011, the hearing examiner found the MAR to be $724.70, not $1,995 as claimed by Lawrence. Lawrence appealed to the Rent Stabilization Commission (RSC) which affirmed the hearing examiner’s decision. Lawrence filed a petition for a writ of mandate in Superior Court to invalidate the RSC’s decision. The petition was denied and Lawrence appeals.
We affirm.

Vernon Richardson appeals the judgment entered after a jury convicted him of possessing a weapon in a penal institution (Pen. Code,[1] § 4502, subd. (a)). In a bifurcated proceeding, appellant admitted suffering two prior strike convictions (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)). The trial court sentenced him to 25 years to life in state prison. The court also imposed various fines and fees, including a $5,000 restitution fine (§ 1202.4, subd. (b)), and a $5,000 parole restitution fine (§ 1202.45), the latter of which was stayed with the stay to become permanent on the successful completion of parole.
Appellant was found in possession of a six-inch sharpened metal rod while in custody as a state prison inmate. Appellant testified that he carried the weapon because he had received threats and suffered prior attacks from other inmates, some of whom were gang members. He did not believe that the prison staff would protect him because he was in prison for attacking a police officer.

Plaintiff appeals an order denying his motion to enforce a judgment based on a settlement agreement. (Code Civ. Proc., § 664.6.) We reverse.

Plaintiff Alfredo Garcia (plaintiff) contends that the court erred in shortening the notice period for the demurrer without good cause, and in sustaining defendant’s untimely served demurrer. We disagree and affirm.

Jack Mills held a gun to the head of Maria Aguilar and shot Juan Ortiz Aguilar during a botched home-invasion robbery. A jury found him guilty of the attempted murder of Juan Ortiz Aguilar (Pen. Code, §§ 187, 664),[1] two counts of assault with a firearm (§ 245, subd. (a)(2)), two counts of attempted second degree robbery (§§ 211, 664), first degree burglary (§ 459), and possession of a firearm by a felon. (§ 12021, subd. (a)(1).) The jury also found true numerous sentence enhancement allegations relating to appellant's use of a firearm and infliction of great bodily injury. As we will explain in greater detail below, the trial court sentenced appellant, a third-strike offender, to 59 years to life for the attempted murder, a consecutive term of 35 years to life for the assault with a firearm on Maria Aguilar, and a consecutive term of 53 years to life for the attempted robbery of Maria Aguilar. Concurrent terms of 35 years to life and 28 years to life were imposed for the assault with a firearm on, and the attempted robbery of Juan Aguilar. Terms imposed for the burglary and firearm possession were stayed pursuant to section 654.

Alex Compian appeals a judgment following his conviction of first degree murder (Pen. Code, § 187, subd. (a), 189), with jury findings that he "personally and intentionally discharged a firearm, which proximately" caused the death of Mario Cisneros. We conclude, among other things, that: 1) the trial court did not err by denying a motion to exclude a witness's pretrial photographic identification and in-court identification of Compian, and 2) substantial evidence supports the finding the murder was deliberate and premeditated. We affirm.

Plaintiffs and Appellants Mehrdad Kohanim (Kohanim) and Morad Mottahedeh and Manijeh Mottahedeh (the Mottahedeh Plaintiffs) (collectively Plaintiffs) jointly sued Defendants Mousa Namvar (Mousa) and Eilel Namvar (Eilel)[1] under two separate personal guaranties for the payment of two loans made to non-party Namco Capital, Inc. (Namco). After Plaintiffs failed to comply with the trial court’s order to post a bond pursuant to Code of Civil Procedure section 1030, the court dismissed the action and entered judgment for Defendants. Defendants jointly moved for an award of $159,850 in attorney fees pursuant to Civil Code section 1717 based on attorney fee clauses in one of the guaranties and both of the underlying promissory notes. The trial court awarded Defendants attorney fees against Plaintiffs, jointly and severally, in the reduced amount of $129,850. Plaintiffs challenge the fee award on the grounds that (1) the Mottahedeh Plaintiffs cannot be liable for attorney fees because the guaranty upon which they sued does not contain an attorney fee clause; (2) Plaintiffs cannot be held jointly and severally liable for the entire fee award because the Mottahedeh Plaintiffs were not parties to the causes of action asserted by Plaintiff Kohanim, and vice versa; and (3) the evidence did not support the amount of the fee award. We find no error in the trial court’s award of attorney fees and, therefore, affirm.

Plaintiff and appellant Barry Fagan appeals judgments of dismissal entered after the superior court sustained the demurrers of defendants and respondents Wells Fargo Bank, N.A. (Wells Fargo), American Securities Company, Ebert Appraisal Service, Inc. (Ebert) and T. D. Service Company (TD Service) to plaintiff’s’ second amended complaint without leave to amend. Fagan also appeals an order denying his motions for reconsideration of a previous order denying his discovery motions.
Plaintiff’s suit arises from a $1 million line of credit he obtained from Wells Fargo secured by his house in Malibu. He contends that the line of credit agreement and related deed of trust he executed are void and that Wells Fargo has no interest in the property because Wells Fargo allegedly transferred its interests in the loan to a third party. Plaintiff seeks a judgment relieving him of any obligation to repay Wells Fargo or any other entity the balance of the $1 million loan he received.
Plaintiff also seeks monetary damages on various grounds. His principal claim is that although he requested a $775,000 line of credit, he was defrauded into receiving a credit limit of $1 million as a result of Ebert’s appraisal of his property, which he contends grossly overstated its fair market value. Plaintiff also alleges that Wells Fargo and TD Services committed slander of title by filing a notice of default which they subsequently rescinded.
For reasons we shall explain, we conclude the trial court correctly determined that the second amended complaint fails to state facts sufficient to constitute a cause of action. We also conclude plaintiff has not met his burden of showing there is a reasonable possibility that he can cure the defects in his pleading and that has not meet his burden of showing the trial court abused its discretion in denying his motions for reconsideration. Accordingly, we affirm the judgments and the order.

Hartford Casualty Insurance Company (Hartford) appeals from the trial court’s order denying a motion to vacate a $4.1 million stipulated judgment entered into between the injured party, Lisa Turner, and Hartford’s insured, Lisa’s mother Marian,[1] to resolve this personal injury action. (Code Civ. Proc., § 473, subd. (b).)[2] The $4.1 million stipulated judgment originally was part of the settlement entered into in the personal injury action Lisa filed against her mother and father, Hartford’s insureds, in the United States District Court. Over Hartford’s objections, the district court did not sign the judgment and later dismissed the action on jurisdictional grounds without prejudice to allow re-filing in state court. Within 30 days of re-filing the personal injury action in state court, and before an answer was due, Lisa filed an ex parte application for entry of the $4.1 million stipulated judgment. Hartford had no notice the personal injury action had been re-filed, the ex parte application had been filed, or the $4.1 million stipulated judgment had been entered against its insured. We conclude the trial court erred in denying Hartford’s motion to vacate. Hartford established “surprise” as required under section 473, and there is insufficient evidence to support the trial court’s conclusion that Hartford failed to accept the tendered defense and was therefore precluded from moving to vacate the judgment. Accordingly, we reverse.