CA Unpub Decisions

Defendant and appellant Darrin Matthew Divincenzo appeals after the trial court denied his petition for “Three Strikes” law resentencing under the reforms enacted by Proposition 36. We affirm.

Defendant and appellant Paul J. Budinich was charged by felony complaint with possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a), count 1.) The complaint also alleged that he had a prior strike conviction (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), that he was eligible for imprisonment in the state prison due to a prior serious or violent felony conviction (Pen. Code, § 1170, subd. (h)(3)), and he was not eligible for probation (Pen. Code, § 1203, subd. (e)(4)). Defendant entered a plea agreement and pled no contest to count 1. In accordance with the plea agreement, the court dismissed the remaining allegations, sentenced him to three years in state prison, and awarded 140 days of presentence custody credits. Pursuant to the agreement, defendant also admitted that, in case no. FWV1002080, he violated the term of his probation that he violate no law. The court revoked his probation and sentenced him to two years in state prison, with credit for time served of 178 days, to run concurrent to the term imposed in the instant case.
Defendant filed a timely notice of appeal. We affirm.

Pursuant to a plea bargain, defendant and appellant Manuel Anthony Ruiz pleaded guilty to two counts of violating Penal Code section 288, subdivision (b)(1) (lewd and lascivious act on a child under age 14, by force, violence, duress, menace or fear), and two counts of violating Penal Code section 288, subdivision (a) (lewd and lascivious act on a child under age 14). He received an agreed sentence of 19 years.
Defendant obtained a certificate of probable cause and filed a notice of appeal. We affirm.

On February 15, 2011, plaintiff, Robin Nenninger, filed a petition against defendant, Eddie Artinian Revocable Trust (the Trust). She claimed that Artinian’s estate owed her $353,000 for loans she made to Artinian during his lifetime.[1]
The trustees of the trust filed a motion for summary judgment, alleging that the statute of limitations barred collection of the loans. The trial court agreed and granted the motion for summary judgment. Nenninger appeals.

A jury found defendant and appellant Jonala Abrisha Jones and codefendant Sada Corneil[1] guilty of assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)[2] The jury also found true that defendant and codefendant personally inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) Defendant thereafter waived her constitutional rights and admitted that she had suffered one prior serious felony conviction (§ 667, subd. (a)) and one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).[3] Defendant was sentenced to a total term of 12 years in state prison with credit for time served. Defendant’s sole contention on appeal is that the trial court abused its discretion in refusing to strike her prior strike conviction or the great bodily injury enhancement. We reject this contention and affirm the judgment.

On July 24, 2009, Stuart Harmon dba Harmon Excavating (plaintiff) filed a complaint for breach of contract against Hazim Abdulzahra (defendant).[1] A court trial was held September 26 and 27, 2011.
The trial court decided that “plaintiff was in the process of performing the contract here at issue on May 21, 2009, when defendant called him off the job and ordered him to take his equipment and leave the site.”
The trial court therefore found that defendant had breached the contract and awarded plaintiff damages of $25,455, costs of $3,253.15, and $30,000 in attorney fees. Defendant appeals.

Leslie L. appeals a juvenile court order terminating her parental rights to her minor son, Dominic L., under Welfare and Institutions Code[1] section 366.26. Leslie challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception to adoption did not apply to preclude terminating parental rights. We affirm the order.

Appellant Sargon Youkhna contends the trial court abused its discretion in sustaining a demurrer to three of the claims asserted in his complaint without leave to amend. We find no error and therefore affirm.

In August 2010, McCray filed a complaint in San Diego County Superior Court relating to the injuries he sustained when he fell on a transit bus in November 2009. The complaint named as defendants the Metropolitan Transit System (MTS), the Metropolitan Transit System Board (MTSB), the San Diego Transit Corporation, various San Diego area cities and the County of San Diego and its Board of Supervisors. On March 21, 2011, McCray filed a first amended complaint that added as defendants the individual members of the MTSB and the County Board of Supervisors (Hal Ryan, Marti Emerald, Anthony Young, Todd Gloria, Sherri Lightner, Jim Cunningham, Jess Van Deventer, Jerry Selby, Jim Janney, Bob McClellan, Al Ovrom, Jerry Rindone, Ernest Ewin, Ron Roberts and Harry Mathis) and MTS employee Mark Held (collectively, individual defendants). On March 30, 2011, McCray delivered a box of documents to the MTS's offices containing envelopes with the names of each of the individual defendants on them. Each envelope contained a copy of a form summons not issued by the court and a copy of the amended complaint.

In September 2011, Daniel Manzilla committed an assault. In September 2012, he pled guilty to assault by means of force likely to cause great bodily injury (Pen. Code,[1] former § 245, subd. (a)(1)) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). In October 2012, the court struck the gang enhancement and sentenced Manzilla to the lower two-year prison term. Manzilla appeals, contending that the ex post facto clause requires that the restitution fine (§ 1202.4) and the parole revocation fine (§ 1202.45) each be reduced from $240 to $200.
Effective January 1, 2012, section 1202.4, subdivision (b)(1) was amended to state: "The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000) . . . ." (People v. Kramis (2012) 209 Cal.App.4th 346, 349 fn. 2.) Previously, section 1202.4, subdivision (b)(1) provided for a restitution fine "set at the discretion of the court and commensurate with the seriousness of the offense, but . . . not . . . less than [$200], and not more than [$10,000]." (§ 1202.4, former subd. (b)(1).) The parole revocation fine must be the same amount as the restitution fine. (§ 1202.45.)

Francis V. Pellegrino (Frank), Alexander C. Pellegrino (Alex), and Gina Marie Pellegrino (Gina) are siblings and partners of Nicholas Pellegrino Investments, LP (NPI), a California limited partnership started by their late father.[1] After years of disputes and escalating tensions, Frank and Alex filed a declaratory relief action to determine the rights and obligations of the managing partners and limited partners of NPI. Gina filed, but later dismissed, a cross-complaint for involuntary dissolution of NPI. A provision in the NPI partnership agreement allows the prevailing party to recover attorney fees.
Following a bench trial, Frank and Alex prevailed on all aspects of the litigation and the court ordered Gina to pay attorney fees. Gina argues that she should not have to pay the attorney fees Frank and Alex incurred defending her cross-complaint because she voluntarily dismissed it. The NPI partnership agreement's provision on attorney fees was broadly worded and covered "any dispute between the partners." Absent a statutory reason not to honor the intent of the contracting parties, we affirm the orders.

Ebrahim Mussa Mohamed (aka Ebrahim Mohamed Mussa) appeals a judgment following his jury conviction on five counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)[1]) and one count of stalking (§ 646.9, subd. (a)). On appeal, Mohamed contends: (1) the trial court erred by not obtaining his express waiver of his right to testify; (2) the court erred by receiving the jury's verdict in his absence; and (3) the abstract of judgment must be amended to correctly reflect his convictions.

In this action under the California Uniform Trade Secrets Act, appellant S.O. Tech/Special Operations Technologies, Inc. challenges the denial of its attorney’s fees. Because we conclude that the trial court erred in concluding that the jury’s failure to find a basis for awarding punitive damages precluded an award of attorney’s fees under the California Uniform Trade Secrets Act, we reverse and remand for further proceedings.

Plaintiff and appellant Mark Augusta appeals from a summary judgment in favor of his former bankruptcy attorneys, defendants and respondents L. Scott Keehn and Keehn & Associates on Augusta's first amended complaint for professional negligence, breach of fiduciary duty and fraud. In that pleading, Augusta alleged defendants' negligence caused him to lose valuable claims against other attorneys who had represented him in securities arbitrations, leading to a settlement that was $3 million less than if those claims had been included in the settlement. The trial court granted summary judgment on grounds Augusta lacked evidence of causation and damages, and his professional negligence claim against Keehn and his law firm was time barred by the one-year statute of limitations of Code of Civil Procedure[1] section 340.6. On appeal, Augusta contends (1) defendants did not make a prima facie showing of entitlement to summary judgment on causation; (2) there are triable issues of material fact as to causation; and (3) there are triable issues of fact as to whether the one-year statute of limitations was tolled by defendants' continuous representation.
We agree defendants' evidence, including Augusta's response to a special interrogatory asking him to state all facts concerning his claim that the settlement in the underlying legal malpractice case was greatly reduced, did not meet its threshold summary judgment burden to demonstrate Augusta does not possess, and cannot reasonably obtain, evidence as to causation and damages. We further conclude Augusta's evidence raises a triable issue of material fact as to tolling under section 340.6, subdivision (a)(2), precluding summary judgment. Accordingly, we reverse.