CA Unpub Decisions

Jamshid Aryeh appeals from the order dismissing his second amended complaint brought under the unfair competition law (UCL), Business and Professions Code section 17200 et seq.[1] The trial court sustained respondent Canon Business Solutions, Inc.’s (Canon) general demurrer without leave to amend, ruling that the allegations failed to state a cause of action and that the claim was barred by laches, the applicable statute of limitations set forth in section 17208, and the doctrines of res judicata and collateral estoppel.
We initially affirmed, finding the action barred by the statute of limitations. The California Supreme Court reversed our decision, concluding instead that continuous accrual principles prevented dismissal on statute of limitations grounds. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1189.) We now reverse the order of dismissal.

Defendant K.M. appeals from a restitution order requiring him to pay $1,150 to the owner of a car defendant was found to have stolen. His appointed counsel on appeal has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), in which counsel raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106 (Kelly).) Counsel has averred defendant has been informed of his right to file a supplemental brief. We have received no such brief.

Javier P. appeals from a juvenile court order committing him to juvenile hall for a period of 112 to 142 days. He contends the court abused its discretion in removing him from his grandparents’ custody and placing him in juvenile hall without services necessary to treat his mental illness; failed to give proper consideration to less restrictive or more rehabilitative dispositional alternatives; and failed to award predisposition credit for time served. We shall order the disposition order modified to award 29 days of predisposition credit and otherwise affirm the order.

Defendant Sahra Arline Wilcoxson contends the sentencing court failed to state valid statutory bases for all fines and penalty assessments imposed in connection with her guilty and no-contest pleas in four cases. She seeks remand for the court to specify the statutory bases for the fines and penalties imposed, and enter a final minute order reflecting its oral judgment. We correct the sentencing minute order in two respects, but find no basis to remand the case for further sentencing proceedings.

The juvenile court found that minors Alexandra and Sydney Z. came within the jurisdiction of that court. On appeal, their father—appellant Dean Z.—challenges the court’s[1] finding that the minors were at risk of serious emotional damage as a result of his conduct. (Welf. & Inst. Code,[2] § 300, subd. (c).) He contends that (1) inadmissible evidence was admitted and considered on this issue; (2) his visitation rights were improperly left to the discretion of a social worker; (3) he could not be found to be the cause of the minors’ serious emotional damage; and (4) insufficient evidence supports the jurisdictional findings. We affirm the disposition orders.

Glass Architects (Glass) appeals from the trial court’s determinations regarding whether or not it was the prevailing party entitled to costs as against four different parties who are respondents in this appeal, after a jury trial to determine all of the parties’ liability for defective work on a community activity center in Newark, California. Respondents disagree with Glass’s numerous assertions of error, and also argue that we lack jurisdiction to consider Glass’s appellate claims because Glass did not timely appeal from the court’s judgment.
We conclude that we lack jurisdiction to consider all but one of Glass’s appellate claims because they are untimely made. As for the one claim that has been timely made, against respondent Tnemec Company, Inc. and California Coating Consultants, Inc. (Tnemec), we affirm the trial court’s ruling.

Glass Architects (Glass) appeals from the trial court’s determinations regarding whether or not it was the prevailing party entitled to costs as against four different parties who are respondents in this appeal, after a jury trial to determine all of the parties’ liability for defective work on a community activity center in Newark, California. Respondents disagree with Glass’s numerous assertions of error, and also argue that we lack jurisdiction to consider Glass’s appellate claims because Glass did not timely appeal from the court’s judgment.
We conclude that we lack jurisdiction to consider all but one of Glass’s appellate claims because they are untimely made. As for the one claim that has been timely made, against respondent Tnemec Company, Inc. and California Coating Consultants, Inc. (Tnemec), we affirm the trial court’s ruling.

Gary Gavello, a 63-year-old father of three young children, died a few days after undergoing surgery. A jury determined that Gavello’s anesthesiologist, Dr. Bernard Millman, was negligent and 20 percent responsible for Gavello’s death. The jury also determined that Gavello’s wife and children (plaintiffs) suffered $2,977,830.50 in economic damages and $1 million in non-economic damages. The trial court capped non-economic damages at $250,000, pursuant to Civil Code section 3333.2 (section 3333.2), a provision of the Medical Injury Compensation Reform Act (MICRA), and it also reduced the economic damages award to account for a prior settlement with Gavello’s surgeon. The resulting judgment awarded plaintiffs $2,105,330.50, plus costs and prejudgment interest.
On appeal, Millman contends that the trial court committed reversible error by refusing to instruct the jury to consider whether intentional or criminal conduct by the nurse who provided Gavello’s post-operative care was a superseding cause of Gavello’s death.[1] Pursuant to a cross-appeal, plaintiffs contend that section 3333.2 is unconstitutional and, even if the MICRA cap on non-economic damages is lawful, the trial court miscalculated the amount of damages that plaintiffs may recover from Millman. We reject all of these contentions and affirm the judgment.

In May 2007, a house owned by appellant Jake Sasser suffered fire damage. The property was covered by an insurance policy issued to Sasser by respondent Allstate Insurance Company (Allstate), and Sasser filed a claim for the damage to the property. Allstate denied Sasser’s claim on the basis that his loss was the result of vandalism, a type of loss subject to a policy exclusion.
Sasser sued, asserting seven causes of action. Allstate moved for summary judgment or, alternatively, summary adjudication, and the trial court granted summary adjudication on six of the claims, all but that for breach of contract. The case then proceeded to trial on the one remaining cause of action. After brief deliberations, the jury returned a verdict in Allstate’s favor.
After the trial, Allstate filed a cost bill seeking over $25,000 in costs, and the trial court allowed most of the costs under Code of Civil Procedure section 1032. Also after trial, Allstate filed a motion under Code of Civil Procedure section 2033.420 to recover the legal fees it incurred in proving the truth of admission requests Sasser had denied during the course of discovery. The court ultimately granted Allstate’s motion in part, awarding it $25,000 in connection with Sasser’s denial of one request for admission.

Defendant K.M. appeals from a restitution order requiring him to pay $1,150 to the owner of a car defendant was found to have stolen. His appointed counsel on appeal has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), in which counsel raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106 (Kelly).) Counsel has averred defendant has been informed of his right to file a supplemental brief. We have received no such brief.

A jury convicted appellant Rogelio Carlos-Zaragoza of three counts of rape in concert, two counts of false imprisonment and single counts of kidnapping and assault with a deadly weapon. (Pen. Code,[1] §§ 264.1 [now subd. (a)] [Stats, 1994, ch. 1188, § 2, p. 7183]; 236; 209, subd. (b)(1), former § 245, subd. (a)(1) [Stats. 2004, ch. 494, § 1, pp. 4040-4041].) The jury also found true three kidnapping for rape enhancement allegations, leading the trial court to sentence him to 75 years to life in state prison. (Former § 667.61, subd. (a), (c)(3), (d)(2) [Initiative Measure, Prop. 83, § 12, eff. Nov. 8, 2006; Stats. 1998, ch. 936, § 9, pp. 6874-6876].) Carlos-Zaragoza appeals, contending that the trial court committed various instructional errors. We agree that the failure to instruct the jury on reasonable doubt was state law error and that the error was prejudicial. (See CALCRIM No. 220.) Thus, we reverse the conviction and remand the matter to the trial court for further proceedings.

Plaintiff Freida Lee appeals a judgment and attorney fee award entered after the trial court granted summary judgment to defendants American Agencies, American Credit Agencies, Inc. (ACA, Inc.), and ACA Receivables Co., LLC (ACA Receivables) in this purported class action for unfair debt collection practices. She contends the trial court erred in granting summary judgment on her claims under the Rosenthal Fair Debt Collection Act (Civ. Code, § 1788 et seq.) and the federal Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.) (FDCPA) and in awarding attorney fees to defendants. We shall reverse the award of attorney fees and otherwise affirm the judgment.

Plaintiff and appellant Brett A. Fiorini (Fiorini) sued defendants and respondents Donaghy Sales, LLC (Donaghy), Phusion Projects, LLC (Phusion), and City Brewing (City Brewing), after the death of Fiorini’s son allegedly from ingesting Four Loko alcoholic/energy beverage. Following dismissal of Fiorini’s complaint as to Donaghy on November 19, 2012, and Fiorini’s complaint as to Phusion on November 27, 2012, notices of entry of judgment as to defendants Donaghy and Phusion were filed on December 3 and 5, 2012. Rather than appeal from these judgments, Fiorini waited until the court entered judgment on February 19, 2013, following the granting of City Brewing’s motion for judgment on the pleadings. Fiorini filed the notice of appeal on April 2, 2013, within 60 days of judgment as to City Brewing, but more than 60 days of judgment as to Donaghy and Phusion.
This court issued an order informing Fiorini that the court was considering dismissing the appeal on the ground that the notice of appeal filed by him seeking review of the judgments of dismissal as to Donaghy and Phusion was untimely. (See Cal. Rules of Court, rule 8.104.) Fiorini responded claiming the arguments asserted by Donaghy and City Brewing in their motion for judgment on the pleadings were interrelated, concerned the same legal issues and, that until the judgment was entered as to City Brewing, there had been no “one final judgment.” In appellant’s words, “the orders and judgments as to Donaghy and Phusion should not be deemed to have amounted to appealable judgments as the lower court was actively, at the time, considering the arguments and legal issues which related to Donaghy and Phusion’s demurrers. In considering City Brewing’s motion for judgment on the pleadings, the lower court was free to, and very well could have, reversed itself as to its rulings relative to Donaghy and Phusion.”

Timothy B. and Alexandra A. in propria persona seek extraordinary writ review of the juvenile court’s orders issued at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e))[1] terminating their reunification services and setting a section 366.26 hearing as to their one-year-old daughter Madison.[2] (Cal. Rules of Court, rule 8.452.) They contend reports filed by the Tuolumne County Department of Social Services (department) contained false allegations, trial counsel was ineffective, and the juvenile court’s orders were erroneous. We deny the petition.