CA Unpub Decisions

The Duringer Law Group, Stephen C. Duringer, and R. Scott Andrews (hereafter referred to collectively and in the singular as DLG, unless the context indicates otherwise), appeal from the order dismissing its malicious prosecution complaint against the respondents after the trial court granted the respondents’ special motion to strike the complaint as a strategic lawsuit against public participation (anti-SLAPP motion). (Code Civ. Proc., § 425.16.)[1] The respondents are DLG’s former client Alan MacMillan (MacMillan) and his attorneys, the law firm of Chambers, Noronha & Kubota (CNK), and attorneys Gary L. Chambers, Peter A. Noronha, Yoshiaki C. Kubota, and Jonathan Dwork (sometimes collectively referred to as the attorney defendants, unless the context indicates otherwise), who sued DLG for malpractice related to DLG’s handling of an unlawful detainer action on MacMillan’s behalf. DLG contends the trial court erred by granting the anti-SLAPP motion because it presented sufficient evidence of a probability of prevailing. DLG also challenges the order awarding the respondents their attorney fees as an abuse of discretion. We conclude DLG’s contentions are meritless, and we affirm both orders.

A jury convicted defendant and appellant Oscar Robles Diaz of second degree murder in the 2009 stabbing death of Leon Torres. Diaz contends the trial court erred in excluding evidence that three years earlier Torres threatened to shoot his landlord’s son in an argument over unpaid rent. The court excluded the 2006 incident under Evidence Code section 352[1] because it had only “marginal[] probative” value and admitting it would “confuse the issues at trial [and] . . . unduly consume time.” Diaz argues the evidence supported his self-defense claim because it showed Torres’s propensity for violence. We find no abuse of discretion and affirm the trial court’s judgment.

Appellant was convicted of burglary and making a criminal threat against his former girlfriend Lan Phan. On appeal, he contends there is insufficient evidence to support the latter conviction and his attorney was ineffective for failing to challenge the prosecutor’s characterization of the evidence in closing argument. He also alleges evidentiary, instructional and sentencing error. Finding his arguments unavailing, we affirm the judgment.

A modification decision.

In July 2011, appellant was charged with possessing marijuana for sale and possessing Oxycontin. He initially pleaded not guilty, but on October 6, he changed his plea to guilty, pursuant to a negotiated plea agreement. Per that agreement, the court suspended imposition of sentence and placed appellant on probation. The court also ordered appellant to pay a $133.75 booking fee and to serve 180 days in jail. It awarded appellant 109 days of presentence credit, based on 73 days of actual custody, plus 36 days of conduct credit.

This wrongful death and survival action arises from the death of Nadine F. Secarea.[1] Plaintiff and appellant Valer V. Secarea, Jr., Nadine’s husband, alleges defendants and respondents Charles Swerdlow, M.D., Kalyanam Shivkumar, M.D., David Cesario, M.D., and the Regents of the University of California[2] caused Nadine’s death by performing a surgical procedure on her heart that included the experimental use of a temperature probe to prevent a rare, but usually fatal complication. According to Plaintiff, the UCLA Defendants performed the surgical procedure without Nadine’s informed consent because they failed to disclose both the possibility this rare complication could develop and the experimental use of the temperature probe to prevent that complication. Plaintiff also alleges defendants and respondents Alan C. Schwartz, M.D., Richard Swartzentruber, M.D., and Irvine Regional Hospital and Medical Center (Irvine Regional) contributed to Nadine’s death by failing to gather the necessary information and data to correctly diagnose and treat Nadine’s rare complication when she arrived at Irvine Regional’s emergency room.
This is Plaintiff’s second appeal in this action. On the prior appeal, we affirmed a summary adjudication against Plaintiff on his wrongful death claim against the UCLA Defendants, but reversed summary adjudication against Plaintiff on his lack of informed consent claim against the UCLA Defendants. We also affirmed the trial court’s ruling sustaining demurrers to Plaintiff’s battery, fraud, and negligence claims against the UCLA Defendants that alleged they improperly performed medical experimentation on Nadine and improperly allowed Cesario to participate in Nadine’s surgery as part of his “on the job training.”

Plaintiff Charles Virzi Construction, Inc., and cross-defendant Charles Virzi appeal from a judgment for defendants G. Kevin Studer and Wells Fargo Bank.[1] Virzi’s briefs and the record on appeal are voluminous, but fundamentally inadequate. Nonetheless, we find in the record ample support for the judgment for Studer on Virzi’s complaint and Studer’s cross-complaint. In short, substantial evidence demonstrates Virzi breached its contract with Studer and acted negligently by deficiently remodeling Studer’s home. We modify the judgment to correct an inexplicable surplus in Studer’s attorney fee award, and affirm.

Appellant, Israel A., a minor, was initially adjudged a ward of the juvenile court in 2010, following his admission that he committed battery (Pen. Code, § 242), and he was readjudged a ward in 2011 following his admission of possession of live firearm ammunition by a minor (Pen. Code, § 12101, subd. (b)(1)).
In 2012, in the instant case, the juvenile court, at a jurisdiction hearing, found true allegations set forth in a juvenile wardship petition (Welf. & Inst. Code, § 602) that appellant committed attempted first degree burglary (Pen. Code, §§ 664/459, 460, subd. (a); count 1), assault by means of force likely to produce great bodily injury (Former Pen. Code, § 245, subd. (a)(1);[1] count 2) and second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); count 3). At the subsequent disposition hearing, on February 14, 2012, the court readjudged appellant a ward of the court and ordered that he serve 365 days in the Tulare County Youth Facility, under the supervision of the probation officer.
On appeal, appellant contends (1) the evidence was insufficient to support his adjudication on count 1, and (2) the court failed to declare whether the count 2 offense was a felony or misdemeanor, in violation of Welfare and Institutions Code section 702 (section 702). The People concede both points. We reverse appellant’s adjudication of attempted burglary and remand for a new disposition hearing.

It was alleged in an information filed September 16, 2010, that appellant, Donald Glass, committed violations of Penal Code sections 4501.5[1] (battery on a nonprisoner by a prisoner) and 69 (resisting an executive officer), and that appellant had suffered a “strike.”[2] The matter proceeded to jury trial, and during trial the court dismissed count 2 on the motion of the district attorney.
On November 16, 2011, the court declared a mistrial after being informed by the foreperson of the jury that the jury was unable to reach a verdict.
On December 21, 2011, pursuant to a negotiated disposition, the information was amended to add a charge of violating section 69; appellant pled no contest to that charge and admitted the strike allegation; and the court dismissed the section 4501.5 charge, struck appellant’s strike, and imposed a prison term of 16 months, to be served consecutively to the term appellant was serving at the time of the instant offense.
Appellant filed a timely notice of appeal. Insofar as the record reveals, appellant did not request, and the court did not issue, a certificate of probable cause (§ 1237.5).
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant, in response to this court’s invitation to submit briefing, has submitted a brief in which he argues his right to the effective assistance of counsel was violated. We affirm.

On October 4, 2010, appellant, Gerald Stuart Snow, pled no contest to an allegation that he feloniously transported narcotics for sale (Health & Saf. Code, § 11379, subd. (a), count 2). Appellant admitted enhancements alleging that he had a qualifying prior prison term (Pen. Code, § 667.5, subd. (b)) and prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (a)). A felony narcotics allegation and two misdemeanor allegations were dismissed. On November 22, 2010, the trial court found appellant eligible for treatment pursuant to Proposition 36, suspended execution of appellant’s sentence without selecting a term of confinement, and placed appellant on probation for three years with various terms and conditions. Appellant did not appeal from these orders.
On April 15, 2011, the court conducted a hearing on an alleged violation of probation. Carma Javaux testified that appellant struck her in the face. The court continued the matter until April 21, 2011, and modified appellant’s conditions of probation to include a no-contact order as to Javaux.

At a jurisdiction and disposition hearing, the juvenile court granted A.K. (Mother) reunification services for her dependent children, J.K. and A.S. J.S. (Father), the presumed father of J.K. and A.S., appeals the juvenile court’s decision granting Mother reunification services. Father asserts the juvenile court erred because Mother was actively involved in causing J.K. to suffer severe physical harm. (Welf. & Inst. Code, § 361.5, subd. (b)(6).)[1] We dismiss the appeal.

Plaintiff Marathon Funding, LLC, appeals from the judgment entered for defendant Paramount Pictures Corporation in this action for breach of fiduciary duty. The claim arose from a contract by which Marathon invested in several motion pictures produced by Paramount. Because the trial court correctly determined that the parties’ agreement did not give rise to any fiduciary duties, we affirm the judgment. We also affirm the postjudgment order awarding Paramount attorney’s fees.

Gilberto Rodriguez appeals from the judgment entered after his probation from a drug sale conviction was revoked. We reject his contentions that he was not arraigned on the probation revocation charge, did not receive notice that the preliminary hearing on new criminal charges would also serve as the probation revocation hearing, and was denied his right to counsel at that hearing. We therefore affirm the judgment.

This is an appeal following the trial court’s grant of a summary judgment motion. We reverse.