CA Unpub Decisions

Eduvigis Diaz appeals from the judgment entered in this personal injury action after a jury found the Los Angeles County Metropolitan Transportation Authority (MTA) and its employee, Omar Forero (collectively MTA defendants), negligent in connection with injuries Diaz sustained while a passenger on an MTA bus. Diaz contends the trial court erred in denying her motion for summary judgment. She also challenges several of the trial court’s evidentiary rulings, contends the jury’s damage award of $15,175 was insufficient as a matter of law and asserts the court committed misconduct by improperly questioning witnesses at trial. We reverse the trial court’s order taxing costs on appeal and affirm in all other respects.

Lonnie Simmons filed a complaint against California Physicians’ Service doing business as Blue Shield of California (Blue Shield), alleging Blue Shield wrongfully denied coverage for medical services he received while he was participating in a Blue Shield health plan. The trial court granted summary judgment to Blue Shield. Simmons contests the judgment on appeal. We affirm.

Plaintiff Catherine Cappelletti (appellant) appeals from the judgment entered following the trial court’s order sustaining a demurrer filed by defendant Infinity Insurance Company (respondent). Among other things, appellant contends the court erred because respondent was required to specifically draw her attention to a crime exclusion in a car insurance policy it issued to appellant. We affirm.
Background[1]
In May 2010, appellant’s parents, on her behalf, applied to respondent for an automobile insurance policy. They applied over the internet using Incorporated Insurance Services, which acted both as respondent’s agent and as appellant’s “attorney-in-fact” in executing the insurance application (Application) on her behalf.
The Application required the acknowledgment of various disclosures. Among other things, the Application stated, “If this policy is a physical damage only policy I understand that: [¶] 17. This policy WILL NOT SATISFY ANY FINANCIAL RESPONSIBILITY LAW, AND DOES NOT PROVIDE ANY LIABILITY INSURANCE and has no provision to indemnify loss sustained by third parties. [¶] 18. No coverage will be provided for any loss while my insured vehicle is being operated by someone who is using the vehicle in the commission of a crime, including driving under the influence of alcohol or a controlled substance.” (Boldface in original.)
Respondent issued a policy (Policy) to appellant. By the terms of the Application, the Application became part of the Policy. The Policy was not a physical damage only policy; it provided liability coverage as well as coverage for damage to appellant’s car. As relevant in the present case, the Policy excluded coverage for damage to appellant’s car “[w]hile the insured auto is being used in the commission of a crime.” (Boldface omitted.) The Policy defined “crime” as “any act, which under the laws of California, is a felony. Crime shall also include any attempt to elude law enforcement personnel and driving under the influence of alcohol or while intoxicated or under the use of any controlled substance.” (Boldface omitted.)

Defendant entered a plea of guilty to possession of a destructive device (Pen. Code, former § 12303) and possession of a firearm by a convicted felon (Pen. Code, former § 12021, subd. (a)(1)), and admitted two prior felony strike convictions (Pen. Code, §§ 667, subds. (d), (e), 1170.2, subds. (b), (c)).[1] After defendant’s motion to dismiss one of the prior strike convictions (§ 1385) was denied, he was sentenced to two terms of 25 years to life in state prison under the three-strikes law, to be served concurrently.
In this appeal he argues that his trial counsel was incompetent for failing to object to the admission of evidence at the hearing on his motion to dismiss a prior strike conviction brought pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He also seeks resentencing under the recent amendments to the three-strikes law, and claims the imposition of concurrent terms for his convictions constituted impermissible multiple punishment. We conclude that counsel was not incompetent for failing to object to the admission of evidence at the hearing on his Romero motion, defendant is not entitled to relief in this appeal from his three-strikes sentence, and the imposition of concurrent terms was not error. We therefore affirm the judgment.

The Retirement Board (Retirement Board) of the City and County of San Francisco (City) filed an interpleader action with respect to $102,663.16 death benefits payable under the San Francisco Employees’ Retirement System (SFERS) account for its deceased employee, Johnnie David Byrd (decedent). Decedent’s son, Johnnie David Byrd III, appeals from a judgment of the City and County of San Francisco Superior Court determining that Marie Kolb Butler, decedent’s designated beneficiary and former domestic partner under the City Charter and City Administrative Code, was entitled to those retirement benefits. We shall affirm the judgment.

Malcolm A. Misuraca, proceeding in propria persona here and below, appeals from orders of the trial court dismissing his suit against defendants David and Phyllis Lyons (the Lyons), because it had not come to trial within five years from the time it was filed, and awarding attorney’s fees to the Lyons. We find no merit in Misuraca’s arguments that the trial court should have estopped the Lyons from seeking dismissal and that the court abused its discretion in ordering the dismissal. Accordingly, we affirm the dismissal of Misuraca’s suit against the Lyons. Because Misuraca’s request for reversal of the award of attorney’s fees is dependent on reversal of the dismissal, we also affirm the award of attorney’s fees.

A jury found defendant Marcus Edward Oliver (appellant) guilty on multiple counts alleging sexual misconduct against multiple minors, and the trial court sentenced him to 78 years to life in prison. Appellant raises claims of instructional and sentencing error, and we modify the judgment to strike certain determinate terms improperly imposed by the trial court. Otherwise, we affirm.

Patrick Joseph Botello, Jr. appeals from his conviction, following a jury trial, for second degree murder, attempted murder, discharging a firearm at an inhabited dwelling, and active participation in a criminal street gang—including true findings on various sentencing allegations for gang involvement and firearm use and discharge.
Botello challenges his convictions, alleging various instructional errors; abuse of the trial court’s discretion in allowing a gang expert to briefly describe a prior “bad act”; insufficiency of the evidence in support of the gang involvement allegations; insufficiency of the evidence in support of one of the firearm use and discharge allegations; and ineffective assistance of counsel.
Botello also challenges his sentence, contending that a 10-year consecutive term for the gang involvement allegation was invalid; that the fines imposed for restitution and parole revocation restitution exceeded the statutory maximum allowed; and that the trial court failed, as required by statute, to determine his ability to pay before imposing a probation report fee.
We conclude that Botello’s assertions of error during trial are without merit, except for two instructional errors which were not prejudicial. Accordingly, we affirm Botello’s convictions and the true findings on the sentencing allegations.
All of Botello’s challenges to his sentence have merit and, with the exception of the challenge to the probation report fee, are unopposed by the People. We reverse Botello’s sentence and remand to the trial court for a resentencing hearing.

Minor J.O. (J.O.) appeals from a judgment of the juvenile court. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues are raised. On October 22, 2012, we notified J.O. of his counsel's brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered by this court. That time has elapsed and J.O. has not submitted a letter or brief. We have reviewed the entire record and find no arguable issues. Accordingly, we affirm the juvenile court's jurisdictional and dispositional orders.

The facts of defendant’s offenses are not relevant to his appellate contention. All of his offenses occurred in August 2009. In April 2010, defendant pleaded no contest to leaving the scene of an accident resulting in injury or death (Veh. Code, § 20001, subds. (a), (b)(1)), possession of a billy (former § 12020, subd. (a)(1)), misdemeanor battery (§§ 242, 243, subd. (a)), and felony battery causing serious bodily injury (§§ 242, 243, subd. (d)). He also admitted that the felony battery count was a serious felony because he had personally inflicted great bodily injury. (§§ 667, 1192.7) In May 2010, the court suspended imposition of sentence and placed defendant on probation conditioned upon, among other things, a one-year jail term. At that time, he was given credit for 239 days of actual custody and 118 days of conduct credit for a total of 357 days of credit.
In November 2010, his probation was revoked. Defendant admitted violating his probation. In May 2011, he was committed to state prison to serve a three-year term. He was credited with 333 days of actual custody and 166 days of conduct credit for a total of 499 days. Defendant timely filed a notice of appeal.

This is one of a number of appeals from judgments after orders granting defense motions pursuant to Code of Civil Procedure section 425.16,[1] the anti-SLAPP statute,[2] in a malicious prosecution action by plaintiff John L. Glavinovich. All of the anti-SLAPP motions relate to the same underlying case, Sweidan v. Orange County Physicians Investment Network, LLC (Super. Ct. Orange County, 2013, No. 30-2009-00122142).
In this case, Glavinovich appeals the trial court’s decision to grant three anti-SLAPP motions filed by 1) Vincent W. Davis and the Law Offices of Vincent W. Davis & Associates (collectively Davis); 2) Jacob Sweidan, and 3) Ajay Meka, Yong Chun, Jamie Ludmit, Ashok Amin, Bharat Chauhan, Suringder Dang, Joginder Jodhka, Sandamitra Kothapa, Anthony Lee, Robert Melikian, Ahmed Salem, Praful Sarode, Grace Sein, and Patrick Walsh (collectively, with Sweidan, the OCPIN plaintiffs). Based on the minimal and nonspecific evidence produced by Glavinovich in the trial court, he has not demonstrated that he can establish a lack of probable cause or malice, two of the three requirements to maintain a cause of action for malicious prosecution. We therefore affirm the trial court’s decision to grant the anti-SLAPP motion.

This is one of a number of appeals from judgments after orders granting defense motions pursuant to Code of Civil Procedure section 425.16,[1] the anti-SLAPP statute,[2] in a malicious prosecution action by plaintiff John L. Glavinovich. All of the anti-SLAPP motions relate to the same underlying case, Sweidan v. Orange County Physicians Investment Network, LLC (Super. Ct. Orange County, 2013, No. 30-2009-00122142).
In this case, Glavinovich appeals the trial court’s decision to grant the anti-SLAPP motion filed by defendants Kenneth J. Catanzarite and Catanzarite Law Corporation (collectively Catanzarite), one of the law firms involved in the underlying case. Based on the minimal, nonspecific evidence produced by Glavinovich in the trial court, he has not demonstrated that he can establish either a lack of probable cause or malice, two of the three requirements to maintain a cause of action for malicious prosecution. We therefore affirm the trial court’s decision to grant the anti-SLAPP motion.

This is one of a number of appeals from judgments after orders granting defense motions pursuant to Code of Civil Procedure section 425.16,[1] the anti-SLAPP statute,[2] in a malicious prosecution action by plaintiff John L. Glavinovich. All of the anti-SLAPP motions relate to the same underlying case, Sweidan v. Orange County Physicians Investment Network, LLC (Super. Ct. Orange County, 2013, No. 30-2009-00122142).
In this case, Glavinovich appeals the trial court’s decision to grant the anti-SLAPP motion filed by defendant Hewitt Wolensky LLP, one of the law firms involved in the underlying case.[3] Based on the minimal, nonspecific evidence produced by Glavinovich in the trial court, he has not demonstrated that he can establish either a lack of probable cause or malice, two of the three requirements to maintain a cause of action for malicious prosecution. We therefore affirm the trial court’s decision to grant the anti-SLAPP motion.

This is one of a number of appeals from judgments after orders granting defense motions pursuant to Code of Civil Procedure section 425.16,[1] the anti-SLAPP statute,[2] in a malicious prosecution action by plaintiff John L. Glavinovich. All of the anti-SLAPP motions relate to the same underlying case, Sweidan v. Orange County Physicians Investment Network, LLC (Super. Ct. Orange County, 2013, No. 30-2009-00122142).
In this case, Glavinovich appeals the trial court’s decision to grant the anti-SLAPP motion filed by defendant Syed Naqvi. Because we find that Glavinovich failed to meet his burden to establish that his malicious prosecution case against Naqvi had even a minimal chance of prevailing on the merits, we affirm.