CA Unpub Decisions

In February 2012, appellant pled no contest to one count of a multi-count information and admitted the truth of serious felony and strike allegations in an amended information dealing with his assault on a woman who was the mother of two of his children. After accepting that plea, the trial court sentenced appellant to seven years and eight months in prison, imposed fines on him, and awarded him conduct and custody credits. Appellant appeals, claiming that (1) the trial court’s declination to consider striking a prior serious felony conviction was error because the possible basis of that decision, i.e., Penal Code section 1385, subdivision (b) (section 1385(b)),[1] is unconstitutional, (2) the trial court erred in several aspects of its award of conduct and custody credits, and (3) appellant received ineffective assistance of trial counsel regarding both issues. We agree that, as conceded by the Attorney General, appellant is entitled to some additional conduct credits; otherwise, we reject appellant’s contentions and thus affirm the judgment of the trial court. We do, however, remand the case to the trial court for correction of the award of conduct credits.

Behnam Tabaie was sued by Alamo Group IX, LLC (Alamo) and obtained a judgment in his favor following a bench trial. He then sought an award of attorney fees on the basis that he had been required to prove facts at trial that Alamo had denied in response to his requests for admissions (Code Civ. Proc., § 2033.420).[1] The court denied the motion. Tabaie has not provided a sufficient record to establish error by the trial court and we affirm.

This is an appeal from a trial court order denying the request of petitioners and appellants Mitchell Silberberg & Knupp and Hillel Chodos (collectively, petitioners) for an award of several million dollars in attorney fees for legal services they provided on behalf of the Guardianship of Alexander Reynolds Hughes (the guardianship), at the direction of objector and respondent Suzan Hughes, as Guardian (guardian). Objectors and appellants John Reynolds, Conrad Klein and Christopher Pair (collectively, cotrustees), in turn, appeal from the portion of the trial court order requiring them to pay 100 percent of the fee charged by the referee appointed to consider petitioners’ fee request. For reasons set forth below, we affirm the order.

On May 23, 2012, Ricardo Alvarado (defendant) pleaded no contest to one count of assault by means of force likely to produce great bodily injury and admitted that he personally inflicted great bodily injury on the victim (Pen. Code, §§ 245, subd. (a)(4), 12022.7, subd. (a)).
On August 17, 2012, the court denied probation and sentenced defendant to six years in state prison consisting of the middle term of three years for the assault and three years for the great bodily injury enhancement. The court awarded defendant credit for time served of 113 actual days and conduct credits of 16 days.[1] The court imposed a $240 restitution fund fine, imposed but suspended a parole revocation fine in the same amount, and imposed $70 in assessments. The court ordered that defendant pay restitution to the victim in an amount to be determined after a restitution hearing. Subsequently, defendant filed a timely notice of appeal.
Defendant's appointed counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende was being requested.

Pursuant to a negotiated disposition, Carl Vaughan (defendant) pleaded no contest to one count of possessing marijuana in prison (Pen. Code, § 4573.6); and admitted that he had one prior strike conviction. (§ 1170.12)[1] In exchange for his no contest plea and admission, defendant was promised a four year prison term to be served consecutively with a sentence he was already serving.
On May 7, 2012, the same day that defendant entered his plea, the court sentenced defendant to the lower term of two years doubled because of the prior strike conviction. The court did not award defendant any credit for time served because the court determined that he was not entitled to any credit since he was at the time serving a prison sentence. The court imposed a $240 restitution fund fine, imposed but suspended a parole revocation fine in the same amount, and imposed $70 in assessments. Thereafter, defendant filed a timely notice of appeal based on only " 'sentencing issues.' "
Defendant's appointed counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende was being requested.

Defendant Jesse Anthony Flores was convicted by jury trial of carrying a loaded firearm on his person in a public place (former Pen. Code, § 12031, subd. (a)(1)),[1] having a concealed firearm on his person (former § 12025, subd. (a)(2)), possessing a firearm in violation of a probation condition (former § 12021, subd. (d)(1)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury also found true gang allegations (§ 186.22, subd. (b)(1)) attached to the carrying and concealed firearm counts. The court found true allegations in connection with the carrying and concealed firearm counts that defendant was prohibited by a probation condition from possessing a firearm (former §§ 12025, subd. (b)(4), 12031, subd. (a)(2)(D)) and that he was not the registered owner of the firearm (former §§ 12025, subd. (b)(6), 12031, subd. (a)(2)(F)). Defendant was committed to state prison for a four-year term.

Forespar Products Corp. and Scott Foresman (collectively Forespar) appeal from the order denying its petition to compel arbitration of an action filed against it by Truplug, a division of Artelier Studio, LLC (Truplug). We find the trial court correctly interpreted the parties’ contract, and we affirm the order.

This appeal involves a claim of transactional malpractice against a law firm, Spolin, Silverman, Cohen and Bosserman, LLP, and two of its lawyers, Scott Spolin and Stephen Silverman (collectively, Spolin). Their former client, M.N. Mansour, Inc. (Mansour), and its principal, M.N. Mansour, allege that Spolin committed malpractice when it failed to include a provision in an asset purchase agreement requiring the buyer to continue to pay Mansour if the assets it purchased from Mansour were sold to another company.
Spolin moved for summary judgment on the malpractice claim, asserting that the buyer would not have agreed to the provision appellants now assert was negligently omitted from the purchase agreement. The court granted the motion and dismissed the action.
We affirm. Appellants did not present evidence to create a triable issue of fact as to whether they would have received a “better deal” if the omission had not occurred. Without this evidence, appellants could not establish “but for” causation, and the legal malpractice claim fails.

Paul D. Copenbarger, acting individually and derivatively on behalf of Newport Harbor Offices & Marina, LLC (NHOM), appeals from the order granting the special motion to strike his complaint pursuant to the anti‑SLAPP statute, Code of Civil Procedure section 425.16 (further code references are to the Code of Civil Procedure unless otherwise specified).[1]
NHOM is the sublessee, and defendant/respondent Morris Cerullo Worldwide Evangelism (Cerullo) is the sublessor under a sub‑ground lease of real property in Newport Beach. After Cerullo served NHOM with a three‑day notice to cure or quit, Copenbarger filed a complaint asserting causes of action against Cerullo, Plaza del Sol Real Estate Trust (Plaza del Sol), Roger Artz, Dennis A. D’Alessio, and Vertical Media Group, Inc. (VMG) (collectively, Respondents), for declaratory relief, breach of contract, and intentional interference with contract.[2] Soon thereafter, Cerullo filed an unlawful detainer action against NHOM, and all Respondents brought their successful anti-SLAPP motion to strike Copenbarger’s complaint.
The dispositive issue on appeal is whether the causes of action asserted in Copenbarger’s complaint arose out of Cerullo’s petitioning activity—protected under section 425.16, subdivision (b)(1)—of service of the three‑day notice to cure or quit and the subsequent unlawful detainer action. We conclude that while the three‑day notice might have triggered the complaint, the evidence in the record demonstrates the complaint was based on an underlying dispute over NHOM’s repair and maintenance obligations under the sublease and other unprotected activities. We therefore reverse the order granting the anti‑SLAPP motion and the order awarding Respondents attorney fees.

Appellants Dennis Adrian Vazquez, Melissa Huerta, and All Blueprint, Inc. (All Blue), appeal from a judgment rendered against them and in favor of AAA Blueprint & Digital Reprographics, Inc. (AAA Blueprint), after a two-day bench trial. The central issue at trial was whether appellants had tried to hinder the collection of a judgment entered in 2006 for AAA Blueprint and against Alliance Reprographics, a rival company owned by Vazquez.
The trial court found that Vazquez and Huerta had indeed sought to frustrate AAA Blueprint’s efforts to collect its 2006 judgment by transferring Alliance’s assets to the newly formed All Blue, a competing printing shop. The court also found that all the defendants in this action – Vazquez, Huerta, All Blue, and Alliance – were alter egos of each other. The court issued an injunction preventing any of the defendants from disposing of assets pending the installation of a receiver.

Amanda M. (mother) appeals from the juvenile court’s orders denying her petition pursuant to Welfare and Institutions Code section 388,[1] finding adoption as the permanent plan for her child, Rachel M., and terminating mother’s parental rights. We reject mother’s contentions and affirm the juvenile court’s orders.

A. G. (mother) appeals the disposition order removing the minor, Viola B., from her custody under Welfare and Institutions Code section 361, subdivision (c)(1),[1] and denying reunification services under section 361.5, subdivision (b)(2). After concluding the disposition order is supported by substantial evidence and it was not an abuse of discretion to deny reunification services, we affirm the disposition order.

On September 2, 2011, a complaint was filed in Fresno County Superior Court, charging defendant Naseer Hamit Zahir with petty theft with prior convictions. (Pen. Code,[1] § 666; count 1.) In addition, defendant was alleged to have suffered a prior conviction under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), for which he served a prison term (§ 667.5, subd. (b)).
On November 1, 2011, defendant entered into a plea agreement pursuant to which he pleaded no contest to count 1 and admitted the prior strike and prison term allegations, on the condition that he receive the lower term of 16 months in prison. On December 13, 2011, the court dismissed the prior strike conviction (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and the prior prison term enhancement, and sentenced defendant to 16 months in prison. The court ordered defendant to pay various fees, fines, and assessments; and awarded 71 days of actual credit, plus 34 days of conduct credit, for a total of 105 days.
Defendant now contends he is entitled to additional custody credits. We affirm.

In this matter we have reviewed the petition and offered real parties in interest the opportunity to respond; no response has been filed by any real party. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
At the stage governed by Welfare and Institutions Code section 366.26, if a child is adoptable, the court must terminate the parents’ rights except in sharply limited situations. The only one relevant here applies when the “parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) The parent bears the burden of showing that the exception applies. (In re Mary G. (2007) 151 Cal.App.4th 184, 207.) More is required than affectionate or pleasant conduct and visits; there must be a “significant, positive, emotional attachment.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent must show that the child would suffer substantial harm from the termination of the relationship. (See In re C.F. (2011) 193 Cal.App.4th 549, 555.)