CA Unpub Decisions

Diana Montano filed a quiet title action asserting adverse possession of a home. After three demurrers were sustained with leave to amend, the trial court sustained the demurrer to the Third Amended Complaint without leave to amend. Montano appeals the judgment of dismissal, and she also contends that the trial court should have granted her discovery motions. We affirm.

Lynette Jacobson (Jacobson) is a third grade teacher at Ocotillo Elementary School in the Palmdale School District (District). Roger Gallizzi (Gallizzi) is the Superintendent of the District. At a public meeting of District’s Board of Trustees (Board), Jacobson spoke (as did three other individuals) against a proposed change to District’s field trip policy.
Three months later at the beginning of the school year, Gallizzi delivered a “Welcome Back” message to District’s teachers, staff, students and parents in which he expounded upon the theme that an educator’s primary responsibility is to create a learning environment for the students. In that context, Gallizzi referred to four incidents in which he believed teachers had acted unprofessionally. He gave, as one example, Jacobson’s remarks from Board’s public meeting, comparing her attitude to that held by Scar, a character in “The Lion King.”
Jacobson sued Gallizzi and District (collectively defendants), alleging that Gallizzi’s remarks were, among other things, defamatory. Defendants moved to strike Jacobson’s complaint pursuant to section 425.16.[1] Their anti-SLAPP motion[2] urged that the gravamen of Jacobson’s complaint arose out of Gallizzi’s constitutionally protected communications on issues of public interest and that Jacobson could not demonstrate a probability of prevailing on her action. The trial court denied the motion, finding that defendants had failed to demonstrate that Gallizzi’s “Welcome Back” message was made in furtherance of his constitutional right to free speech.
This defense appeal follows. First, we find that Gallizzi’s message addressed issues of public interest: the goal of public education, the role teachers play in reaching that goal, and District’s new field trip policy. Second, we find that Jacobson failed to demonstrate a probability of prevailing on her claims because Gallizzi’s message was subject to the absolute privilege accorded statements made by a government official in proper discharge of his official duties. (Civ. Code, § 47, subd. (a) (hereafter section 47).) We therefore reverse the trial court’s order and direct it to grant the special motion to strike, to dismiss the complaint with prejudice, and to award attorney fees to the defense.

Frank Ortega appeals the judgment following his convictions for evading an officer (Veh. Code, § 2800.2, subd. (a)) (count 1) and misdemeanor reckless driving (Veh. Code, § 23103, subd. (a)) (count 2). He was sentenced to the low term of one year four months in state prison on count 1 and to a concurrent 90-day term on count 2. Ortega contends the trial court erred by refusing to instruct the jury on the defense of duress and by failing to stay imposition of the sentence on count 2. We affirm.

Jose Federico Hernandez appeals his conviction by jury for four counts of lewd conduct on a child under the age of 14 (Pen. Code §288, subd. (a))[1] with multiple victim enhancements (§667.61, subds. (a), (d) & (e)) and three counts of lewd act on a 14 or 15 year-old child 10 years younger than appellant (§ 288, subd. (c)(1)). The trial court sentenced appellant to 45 years to life state prison. Appellant contends that he was denied a fair trial because defense counsel was not permitted to cross-examine a victim about what she told her psychotherapist. We affirm. (Evid. Code §§ 352, 1012, 1014.)

Kenneth John Williams appeals from the judgment entered upon his conviction by jury of first degree murder in violation of Penal Code section 187, subdivision (a).[1] The jury also found true the allegations that appellant personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)), and that he committed the murder for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced appellant to 50 years to life in state prison, calculated as 25 years to life for the murder, plus a consecutive term of 25 years to life for the firearm enhancement. Appellant was ordered to make restitution in the amount of $7,954.50, plus 10 percent interest from the date of sentencing, comprised of $7,500 to the Victim Compensation and Government Claims Board (VCGCB), and $454.50 to the victim’s sister Shaundra Nichols.[2] The trial court also assessed a restitution fine in the amount of $240 (§ 1202.4, subd. (b)) and imposed and stayed an equal parole revocation fine (§ 1202.45).
Appellant contends (1) there was insufficient evidence to support the gang allegation, (2) imposition of the restitution and parole revocation fines in the amount of $240 constituted an ex post facto application of the law, and (3) the trial court’s restitution order to Ms. Nichols was not supported by substantial evidence.
We modify the judgment to reflect restitution and parole revocation fines in the amount of $200, and to reflect the trial court’s restitution order to be $7,953.50. Appellant is to make restitution to the VCGCB in the amount of $7,500, and to Ms. Nichols in the amount of $453.50, plus 10 percent interest per year from the date of sentencing. We otherwise affirm.

Plaintiffs Holly Peck, Daniel Mills and Kathy Burnett, individually and on behalf of others similarly situated, appeal from a judgment of dismissal in favor of defendant The City of Hawthorne entered after the trial court sustained defendant’s demurrer without leave to amend. The trial court sustained the demurrer on the ground the Public Employees Medical Care and Hospitalization Act (PEMCHA, Gov. Code, § 22751 et seq.) provided no private right of action. We affirm.

Appellant Jose Ayala was convicted, following a jury trial, of one count of false imprisonment by violence in violation of Penal Code section 236,[1] one count of kidnapping in violation of section 207, two counts of assault with a firearm in violation of section 245, subdivision (a)(2), one count of making criminal threats in violation of section 422 and one count of kidnapping for ransom in violation of section 209, subdivision (a). The jury found true the allegations that a principal was armed with a firearm in the commission of the false imprisonment, criminal threats and kidnapping offenses within the meaning of section 12022, subdivision (a)(1).

After a court trial, defendant was found guilty of three counts of special circumstance murder (Pen. Code, § 187, subd. (a)[1]; counts 1, 2 & 3); one count of second degree robbery (§ 211; count 5), one count of attempted second degree robbery (§§ 664/211; count 8), and three counts of criminal threats (§ 422; counts 9, 10 & 11). The trial court found true the firearm enhancement allegations pursuant to section 12022.5, subdivision (a)(1) in counts 1, 2, 3, and 5. The trial court found true the firearm enhancements pursuant to section 12022.53, subdivisions (b), (c), and (d) in counts 1, 2 and 3.
The trial court sentenced defendant to state prison for three consecutive sentences of life without the possibility of parole (LWOP), plus 75 years to life, plus seven years six months. The sentence consisted of the following: in counts 1, 2 and 3, LWOP plus 25 years to life on each count for the firearm enhancement; in count 5, a consecutive midterm sentence of three years plus four years pursuant to section 12022.5, subdivision (a); in count 8, a consecutive midterm sentence of six months; and in counts 9, 10 and 11, a concurrent midterm sentence of two years for each count.
Defendant appeals on the grounds that: (1) the trial court’s unjustified revocation of his right to proceed in propria persona is reversible error; and (2) there was insufficient evidence in support of the criminal threat charges in counts 9 and 11.

Defendant and cross-complainant Zelma R. Stennis (Zelma) appeals from the portion of a judgment entered after a jury trial in favor of plaintiff and cross-defendant Kathleen A. Kenne (Kenne). Kenne appeals from the portions of the judgment in favor of Zelma and awarding attorney’s fees and costs in favor of defendant Kevin P. Stennis (Kevin). Kevin also appeals from the judgment as to the award of attorney’s fees and costs. We affirm.

William Keller appeals from a judgment and sentence following a guilty plea. His court-appointed counsel has filed a brief requesting our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 to determine whether there are any arguable grounds for appeal. We conclude there are no issues that warrant review, and affirm.

In September 2011, plaintiffs[1] filed a petition for writ of mandate and complaint for declaratory and injunctive relief alleging that the calculation used by the Legislature to appropriate funds for K-14 education in the 2011-2012 Budget Act violates article XVI, section 8 of the California Constitution, the school funding measure added to the Constitution by Proposition 98 in November 1988 (Proposition 98).[2] Proposition 98 includes what is referred to as a “minimum funding guarantee” that requires the Legislature to appropriate for K-14 education “[t]he amount which, as a percentage of General Fund revenues . . . equals the percentage of General Fund revenues appropriated for school districts and community college districts, respectively, in fiscal year 1986-1987.” Plaintiffs allege that the 2011-2012 Budget Act violates the “minimum funding guarantee” by excluding from general fund revenues, and diverting to a newly created special fund to support the realignment of public safety programs, 1.0625 percent of sales and use tax revenues.

When J.M. (the minor) was born, her mother (Mother) was living with D.M. (D.), who claimed the minor as his child. At age three months, the minor was detained by the San Mateo County Human Services Agency (Agency) after being hospitalized with injuries suggesting abuse. During subsequent proceedings, D. was designated the minor’s presumed father, but DNA testing demonstrated that K.W. (K.) was her biological father. K. moved to assert a constitutional right to presumed father status under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), but the juvenile court denied the motion. We affirm.

Defendant Francisco Javier Hernandez appeals from his conviction, after jury trial, of assault with a deadly weapon likely to produce great bodily injury, accompanied by findings that certain enhancement allegations were true, for which defendant was sentenced to a total of six years in state prison. Defendant argues that the court erred when it denied his motion for acquittal on the assault charge because there was not substantial evidence to support a conviction; there was insufficient evidence to support the jury’s finding that he personally inflicted great bodily injury on the victim; and the court abused its discretion in denying his motion to dismiss the information. We affirm the judgment.

Appellant Martenyi appeals from a July 2011 order of the San Francisco Superior Court denying his motion to set aside a judgment of dissolution of his marriage to respondent Shapiro, a judgment filed in December 1994. We find that substantial evidence supports the trial court’s entry of this order, and reject appellant’s contention that the documents indicating his agreement to that dissolution contained forgeries of his signature. We also reject other contentions raised by appellant, e.g., that the trial judge who heard and denied his motion was biased against him because of his having been sentenced to prison for a federal crime. We affirm the order.