CA Unpub Decisions

Marcus Deshonne Hays was convicted by a jury of two counts of second degree robbery and two counts of kidnapping with a special finding he had personally used a firearm to commit the offenses.[1] In a bifurcated proceeding the trial court found Hays had suffered two prior convictions in Georgia that qualified as serious felonies under California’s “Three Strikes” law (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i))[2] and section 667, subdivision (a)(1), and had served a separate prison term for a felony conviction within the meaning of section 667.5, subdivision (b). Hays was sentenced to an aggregate state prison term of 69 years four months to life.
On appeal Hays contends the trial court erred in finding one of the prior Georgia convictions (for armed robbery) constituted a serious felony under California law. Hays also contends he was improperly sentenced to both the one-year prior prison term enhancement and the five-year serious felony enhancement for convictions involving the same incident.[3] We reverse in part and remand for further proceedings.

In this case, two promissory notes, one for $500,000 and another for $300,000, were secured by one deed of trust on real property. When the trustor-debtor defaulted, the real property was sold under the power of sale in the deed of trust. In subsequent litigation over the ownership of the real property, the trial court ruled that each of the note holders were entitled to a five-eighths and three-eighths interest, respectively. On appeal, the five-eighths owners claim they were entitled to the entirety of the real property, arguing that the unraveling of a settlement of an earlier dispute to which they were not a party somehow deprived the three-eighths owner of its interest. We disagree because the earlier settlement had nothing to do with the rights of the five-eighths owners, who received the benefit of their bargain. They also argue that the interests of the three-eighths owner disappeared by virtue of the merger of title doctrine. We disagree because there was no merger of title as title of that interest was never held by the same parties. And as to the claim of the three-eighths owner for attorney fees, we conclude that the lack of an attorney fees provision in any contract between the three-eighths owner and the five-eighths owners defeats its claim. We affirm the judgment and the order denying attorney fees.

A jury found Darris Donnell Hardy guilty of attempted premeditated murder, torture, and aggravated mayhem, and found true that the victim suffered great bodily injury. The trial court found that Hardy was legally sane, and sentenced Hardy to 38 years to life on the attempted murder conviction, staying the sentences on the other counts. Hardy appeals, arguing that the trial court erred in reopening the evidence during jury deliberations, in failing to instruct on lesser included offenses, and in concluding that there was sufficient evidence that Hardy was legally sane. We find no error, and we affirm.

In this matter, Ivan M., age 18, filed his notice of appeal on August 20, 2012. The case concerned the placement of defendant at Santa Rita jail by the juvenile court from June 21, 2012, after counsel for Ivan M. challenged the sentence. At a placement review hearing on November 28, 2012, the juvenile court ordered Ivan M. released from Santa Rita jail, dismissed the wardship and terminated his probation. In other words, the case was dismissed by the trial court. In a footnote of defendant’s opening brief, counsel suggests the appeal is “moot.” Nevertheless, she decided to file a Wende brief.

In September 2011, a jury convicted Roy Melanson of the July 1974 murder of Anita Andrews. (Pen. Code, § 187, subd. (a).) Melanson was sentenced to life in prison with the possibility of parole. On appeal, Melanson contends the judgment must be reversed because (1) evidence of several uncharged offenses was erroneously admitted at trial; (2) this case should have been dismissed for precharging delay; and (3) a photographic line-up was impermissibly suggestive. We reject these contentions and affirm the judgment.

Appellant, cross-complainant, and defendant Pacific Gas and Electric Company (PG&E) appeals from an order by the trial court granting a partial new trial after a jury returned a verdict finding PG&E negligent but not a substantial cause of Santa Clara County Fire Department Captain Mark McCormack’s death. Captain McCormack suffered fatal injuries while responding to a house fire on February 13, 2005, after he touched a downed electrical power line. Plaintiffs and appellants are Heather McCormack, Captain McCormack’s widow, and Jack and Shirley McCormack, Captain McCormack’s surviving parents. The McCormacks brought suit against PG&E, as well as defendants, cross-defendants, and respondents Quyen Nguyen and Dam Mac, for wrongful death and negligence. Nguyen owned the residence that caught on fire, and Mac, Nguyen’s ex-husband, inadvertently started the fire.
On appeal, PG&E argues that the McCormacks’ claims are barred by the common law firefighter’s rule. PG&E additionally claims that the trial court’s order granting the new trial is reversible per se as the court failed to supply a sufficient statement of reasons with its order. In the alternative, PG&E contends that even if this court were to find the trial court’s statement of reasons adequate, this court should reverse the order as the trial court erred in granting the motion since sufficient evidence supported the jury’s verdict and because the jury’s verdict was not against the law. Lastly, PG&E asserts that the trial court tainted the jury by allowing improper expert testimony from Dr. John Palmer, one of the McCormacks’ expert witnesses.
For the reasons set forth below, we find the firefighter’s rule inapplicable to this case. We further find that the trial court did not abuse its discretion in granting the motion for new trial on the basis of insufficient evidence, nor did it err in allowing Dr. Palmer’s testimony. We therefore affirm the new trial order and the judgment.

A modification decision.

In this juvenile dependency matter, the mother contends, and the father joins her contentions, the juvenile court erred in refusing to provide her a full hearing after she petitioned for the court to change its order to set a hearing to terminate parental rights. We find the juvenile court did not abuse its discretion when it denied the mother a hearing on her petition and we affirm the order terminating parental rights.

John R. Gorny appeals from an order denying his petition to compel arbitration of the medical malpractice action filed against him by Dylan Law, by and through his guardian ad litem and mother, McKenzie Law, and his parents McKenzie and Jesse Law, individually. (For clarity we will refer to the plaintiffs collectively as the Laws and individually by their first names. No disrespect is intended.) Gorny contends the trial court erred by finding he had waived his contractual right to arbitration by waiting to pursue arbitration and participating in discovery. We conclude the order is supported by substantial evidence and, accordingly, it must be affirmed.

In its demurrer, defendant and respondent Ruby’s Diner, Inc. (Ruby’s Diner) claimed Doug DeCinces (DeCinces) was not the proper plaintiff with respect to the cause of action for breach of a right of first refusal, inasmuch as he was not a party to the agreement that contained the right of first refusal and that identified Ruby’s Laguna Associates, Ltd. (Laguna Associates) as the holder of the right. The court sustained the demurrer. So, the plaintiffs amended the complaint to state that Laguna Associates was the plaintiff pursuing that cause of action. Ruby’s Diner then filed a motion for summary judgment, contending that Laguna Associates was not the proper plaintiff, DeCinces was, because he was the holder of the right of first refusal. The court granted summary judgment, leaving no plaintiff to pursue the second cause of action.
In reviewing the summary judgment, we first conclude that Laguna Associates succeeded in raising a triable issue of material fact as to whether it was indeed the proper plaintiff. This notwithstanding, we also conclude that no trial will be necessary on the identity of the proper plaintiff, on remand. We apply the doctrine of judicial estoppel to bar Ruby’s Diner from claiming that Laguna Associates is not the proper plaintiff with respect to the second cause of action. We reverse the summary judgment in favor of Ruby’s Diner, together with the award of attorney fees in its favor, and remand.

K.P. (father) appeals from an order made at the six-month review hearing denying his request for placement of his daughter, Myla F. Father contends the juvenile court erred in denying his request that Myla be placed with him pursuant to Welfare and Institutions Code section 361.2.[1] We affirm.

This is an appeal from the denial of a special motion to strike under Code of Civil Procedure section 425.16, commonly known as the “anti-SLAPP statute.”[1] The motion was filed by appellant Howard Sagaser as to claims for breach of fiduciary duty, breach of the duty of loyalty, conversion, and invasion of privacy asserted against him by respondents Peter Castleman, Central California Development Group, LLC, Selma Crossings, LLC, and Merced Gateway, LLC. The trial court concluded that the anti-SLAPP statute was not applicable to respondents’ causes of action because the claims did not arise from constitutionally protected speech or petitioning activity, but rather from the alleged breach of an attorney’s professional and ethical duties owed to former clients. We affirm the trial court’s ruling.

Following an earlier conviction for indecent exposure and resentencing related thereto, defendant Ernest Joseph Sims contends that he should have been awarded additional conduct credits pursuant to Penal Code[1] section 4019, and that the trial court’s failure to award the additional credits amounts to a violation of his equal protection rights. Respondent contends the conduct credits awarded by the trial court in February 2012 were proper. The court will affirm the judgment.

Appellants, Juan Sandoval and Gudelia Sandoval, filed a complaint against respondents, JPMorgan Chase Bank, N.A. (JPMorgan Chase) and First American Trustee Servicing Solutions, LLC (First American), seeking damages for fraud and negligent misrepresentation in connection with their application for a modification of their home loan. According to appellants, although they provided JPMorgan Chase with all of the requested documents and paid an additional $2,000 per month toward their mortgage for seven months, JPMorgan Chase nevertheless refused to modify the loan and initiated nonjudicial foreclosure proceedings against them.
Respondents demurred to the complaint. The trial court sustained the demurrers on the ground that appellants failed to state facts sufficient to constitute a cause of action. Regarding the cause of action for negligent misrepresentation, the court determined that appellants had not alleged that the statements were made with intent to induce reliance or that they actually relied on those statements. The court further determined that appellants had not alleged any of the elements of a cause of action for fraud. The court granted appellants 10 days leave to amend the complaint with the time to run from service of the minute order.
Appellants did not file an amended complaint. Thereafter, on respondents’ applications for dismissal, the trial court dismissed the complaint and entered judgments in respondents’ favor.
Appellants have appealed from the judgment entered in favor of JPMorgan Chase. According to appellants, they were confused by the ruling on the demurrers and were not aware that they had to file an amended complaint. Further, appellants contend that the trial court delivered its decision on the application for dismissal before appellants were permitted to comment. Appellants acknowledge that they erred but argue that it “was not intentional due to lack of knowledge in the court proceedings” and ask this court “to consider granting the appeal to resolve [JPMorgan] Chase’s inhumane intentional fraud and deception.” Although no appeal was taken from the judgment entered in favor of First American, First American has nevertheless filed a responding brief “in an abundance of caution.”
Appellants have not met their burden to show reversible error. Accordingly, the judgment will be affirmed.