CA Unpub Decisions

An owner of beachfront real property in Malibu, California, dedicated two public accessway easements on the property, one vertical and one lateral, as mitigation for development permits under the California Coastal Act of 1976 (Coastal Act). (Pub. Resources Code, §§ 30000–30900; all undesignated section references are to that code.) Later, at a public hearing, the California Coastal Commission (Commission) issued an administrative cease and desist order to remove development from the easements so they could be opened and provide public access to the beach. Before the Commission, the landowner argued that (1) the offer to dedicate the vertical easement was subject to an unfulfilled condition precedent — a nearby publicly owned easement would be opened first — and (2) the order was precluded by res judicata based on the judgment in a prior lawsuit between the landowner and a nonprofit organization concerning the opening of the vertical easement on the landowner’s property. The Commission rejected those arguments and issued the cease and desist order in an effort to open the landowner’s easements.

This action arises out of a dispute between plaintiff Parmanand Kumar and his homeowners’ association. Defendants the Law Offices of Robert E. Weiss Incorporated and attorney Cris A. Klingerman (collectively the law firm) represented the homeowners’ association in that matter. When Kumar sued the law firm essentially for legal malpractice, the trial court granted the law firm’s motion to strike Kumar’s complaint as a Strategic Lawsuit Against Public Participation (SLAPP; Code Civ. Proc., § 425.16). The court later awarded attorney fees to the law firm.
Kumar appeals from both orders. He contends: (1) the trial court lacked jurisdiction to hear the anti-SLAPP motion; (2) the causes of action against the law firm were not based on constitutionally protected activity within the meaning of the anti-SLAPP statute; and (3) the attorney fee award was improper because the anti-SLAPP motion should have been denied. We dismiss the appeal from the order granting the anti-SLAPP motion as untimely and affirm the attorney fee award.

Ronald Avila appeals from a February 23, 2011 order of the trial court granting Stephanie M. Hogan’s request for a restraining order against him. He contends that substantial evidence does not support the court’s order. We disagree and affirm the order.

Defendant Jesus Gerardo Soto appeals from the judgment entered following a jury trial in which he was convicted of inflicting corporal injury on a spouse or cohabitant, with a finding of great bodily injury, mayhem, false imprisonment by violence, criminal threats, dissuading a witness from reporting a crime, driving under the influence of alcohol or drugs, evading an officer, and two counts each of assault on a peace officer, resisting an executive officer, and child abuse. Defendant contends the trial court erred by failing to stay the sentence on either the corporal injury to a spouse or cohabitant conviction or the mayhem conviction, and by imposing a domestic violence fund fine. We agree and modify the judgment.

A modification decision.

Defendant Andrew Jones appeals from the judgment entered following a jury trial in which he was convicted of second degree murder and mayhem, with findings he used a dangerous and deadly weapon. Defendant contends the trial court committed several instructional errors and erred by ordering him to submit to a clinical interview by the prosecution’s mental health expert. We affirm.

Petitioner Jason K. is incarcerated, awaiting trial on homicide charges. In this dependency proceeding, he seeks writ relief from an order denying him reunification services with his daughter, Isabella K. We find no error and deny the writ.

Appellant Jordan Rosenberg, acting in propria persona, filed this lawsuit claiming he experienced numerous violations of his rights while he was a resident in a custodial prerelease facility called the Taylor Street Center in San Francisco (the Taylor Street facility). He appeals from a summary judgment granted in favor of respondents, the employees and corporate officers of the Taylor Street facility. Appellant claims this court should “revoke the orders granting the defendants[’] motions for summary judgment and . . . allow the case to go to trial.” However, appellant fails to support this assertion with any discernible legal argument or cogent discussion of the evidence presented on summary judgment. Consequently, we affirm.

Appellant Arnold David Martin was found guilty by a jury of possession of a deadly weapon in violation of Penal Code section 12020, subdivision (a) (count 1) and resisting an executive officer in violation of Penal Code section 69 (count 2). Imposition of sentence was suspended and appellant was placed on probation for a period of three years on certain terms and conditions.
Officer Carter of the Fairfield Police Department saw appellant riding his bicycle and then running a red light at a four-way intersection. Carter exited his patrol car and appellant was now standing near his bike. Carter directed appellant to sit down, but appellant did not comply. As appellant approached Officer Carter, Carter grabbed hold of appellant’s right arm to detain him. At this point, appellant pulled away and grabbed the handle of Carter’s gun which was holstered. Carter struck appellant in the face with the palm of hand which caused appellant to spin around, allowing Carter to put appellant in a “carotid restraint.” Although continuing to resist, appellant was eventually subdued. When searched, a dagger was found tucked into appellant’s waistband.

A jury found defendant Mario Antonio Lopez guilty as charged of being an active member of a criminal street gang (Penal Code, § 186.22, subd. (a) [1]), and being a past‑convicted felon in possession of a firearm (former § 12021, subd. (a)(1)[2]). The jury also found true an allegation that the latter offense was “committed . . . with the specific intent to promote, further, or assist in any criminal conduct by gang members” (§ 186.22, subd. (b)(1)). After finding true allegations that defendant had a prior felony conviction for purposes of various enhancing statutes (§§ 667, 667.5, 1170.12), the trial court denied defendant’s motion to strike the serious violent felony prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced him to state prison for an aggregate term of nine years.
On this timely appeal, defendant makes numerous and varied claims of error. He first contends that his motion to suppress evidence was erroneously denied on the ground that he lacked standing to contest the search of the residence where the firearm was found. Next, he contends that substantial evidence does not support either of the gang‑related penalties, and that substantial evidence is also lacking on the crucial point of his possession of the weapon. Next he argues that the trial court erred when it responded to a question from the jury. Finally, he argues that the trial court abused its discretion when it denied his Romero motion to strike his prior felony conviction so that he would not be sentenced in accordance with the Three Strikes law. We conclude that only the last of these contentions has merit, and that the error requires resentencing, but otherwise affirm.

Mary F., the mother of William D. and James D., appeals from dispositional findings and orders, challenging only compliance issues under the federal Indian Child Welfare Act (ICWA). She seeks conditional reversal of the disposition orders and striking of the “ICWA inapplicability” finding because of the following alleged compliance errors: (1) defective notice; (2) unauthorized finding that ICWA was inapplicable; and (3) error in proceeding with disposition hearing. We affirm.

For the second time in recent years we are called upon to construe the scope of rule 8.278 of the California Rules of Court (rule 8.278), which governs recovery of costs allowed following a successful appeal. Last year the Supreme Court affirmed a decision by this court, and held that “rule 8.278(d)(1)(F) does not authorize an award of costs for interest expenses and fees incurred to borrow funds to deposit as security for a letter of credit that was procured to secure an appeal bond.” (Rossa v. D.L. Falk Construction, Inc. (2012) 53 Cal.4th 387, 399 (Rossa).) Here, the respondent borrowed money to deposit with the trial court in lieu of securing an appeal bond. After its appeal was successful, it was allowed to recover the more than $200,000 interest paid on the borrowed funds as a cost of appeal. The costs were included in an amended judgment from which this timely appeal was perfected.
We first consider whether rule 8.278 and the reasoning of Rossa preclude the appellant recovering the interest paid on the borrowed funds as a cost of appeal. We conclude this type of interest is likewise precluded. Next, we consider whether a recent amendment of rule 8.278, which expressly allows recovery of interest in this situation, and which became effective during the pendency of this appeal, should be given retroactive application. We conclude that it should not. In light of these conclusions, we modify the amended judgment by deleting the interest, and affirm the modified, amended judgment.

Defendant was convicted of child molestation and possession of child pornography after a young girl he was babysitting accused him of molesting her. He contends a warrantless police entry into his bedroom was unreasonable, his attorney rendered ineffective assistance of counsel for various reasons, the prosecutor committed misconduct, and the victim’s hearsay statement was improperly admitted. We affirm.

Qwest Communications International, Inc., Qwest Corporation,[1] and Dennis Sherwood, defendants below, appeal the judgment entered upon a jury verdict in favor of Amy Moran, plaintiff below. The jury found all defendants liable for the sexual harassment of Moran and Qwest liable for failure to take reasonable steps to prevent the sexual harassment and for terminating Moran’s employment in violation of public policy. The jury awarded Moran $492,710 for economic damages, a total of $2.8 million for noneconomic damages, and $1 million in punitive damages. Defendants contend that: (1) the jury’s findings of liability were not supported by substantial evidence; (2) the trial court prejudicially abused its discretion when it admitted evidence that Sherwood harassed other individuals at Qwest and had been investigated for sexual harassment at a previous job; (3) the award for noneconomic damages is excessive; and (4) Qwest cannot be liable for punitive damages because the jury’s finding that Sherwood was a managing agent of Qwest was not supported by substantial evidence.
Moran cross-appeals from the order of the trial court granting summary adjudication to defendants on her first and fifth causes of action, for gender-based discrimination and for failure to pay wages on termination, contending that triable issues of fact exist.
With the exception of the awards for noneconomic damages, we affirm the judgment entered by the trial court. The awards of noneconomic damages are reversed and we remand the cause for a new trial, solely on the issue of noneconomic damages, unless Moran accepts a remission of noneconomic damages in the amount of $750,000. We also affirm the court’s order granting summary adjudication to defendants on Moran’s first and fifth causes of action.