CA Unpub Decisions

Appellant Rahmi Turkmen appeals from a judgment entered following a jury verdict against respondents James R. Katz and his wife Gail Lynn Katz. The jury awarded Turkmen $120,000 in damages for unpaid work for the Katzes that was within Turkmen’s tile contractor license. However, the court ordered that the damages award be offset by $195,425, the amount the Katzes had previously paid Turkmen for construction work, based on the Katzes’ cross-claim seeking reimbursement of the $195,425 because Turkmen was not licensed to perform the work. The net result was that Turkmen was ordered to pay the Katzes $75,425.
Turkmen contends that the damages award in his favor should not have been subject to the $195,425 offset because the Katzes failed to prove at trial that the work for which he was paid fell outside his tile license. He also contends that the court cut off his testimony at trial before he could offer proof of his damages, leading to an award that was too low. Finally, he complains that the court responded improperly to several questions posed by the jury during its deliberations.
We find no error in the court’s management of the trial and find that Turkmen forfeited any objections to the court’s responses to the jury’s questions. However, we hold that the trial court erred in concluding that the Katzes were entitled to be reimbursed for the entire $195,425 they paid Turkmen. We thus reverse the judgment ordering the offset, and remand the matter to the trial court for a new trial on the issue of what portion of the $195,425 should be returned to the Katzes because it was payment for work Turkmen was not licensed to perform or was not work that was incidental or supplemental to his tile work.

Plaintiff and appellant Michael Leslie Productions, Inc., dba Ready Golf Centers (Ready Golf) appeals from the judgment of dismissal entered by the trial court following the sustaining of the demurrer of defendant and respondent City of Los Angeles (City) to Ready Golf’s original complaint without leave to amend. Ready Golf contends it stated a valid claim entitling it to relief by writ of mandate, and that even if there were defects in its original pleading, the trial court abused its discretion in refusing Ready Golf at least one opportunity to amend. We affirm.

Marcus J. Polk appeals a judgment quieting title to real property in favor of Lillian H. Jones, canceling his note and deed of trust, and enjoining his attempted foreclosure sale. The trial court entered the judgment on equitable counts after the jury found that Polk had committed fraud in connection with Jones’s execution of the note and deed of trust. Polk contends the evidence does not support the jury verdict. We conclude that Polk has shown no error in the judgment and therefore will affirm the judgment.

Plaintiff and respondent, Travelers Property Casualty Company Of America (Travelers), filed this action for declaratory relief seeking a determination that there was no potential for coverage under its policy, and therefore no duty to defend its insureds, Charlotte Russe Holding, Inc., Charlotte Russe Merchandising, Inc., David Mussafer, Jenny J. Ming, Advent International Corp., Advent CR Holdings, Inc., and Advent CR, Inc. (the Charlotte Russe parties), in litigation against them by Versatile Entertainment, Inc., and its parent, People’s Liberation, Inc. (collectively Versatile). The trial court agreed with Travelers, and granted its motion for summary judgment. We will reverse the summary judgment.

A jury convicted defendant Ruben Velasquez of first degree murder and found an accompanying firearm enhancement to be true. Defendant’s only claim on appeal is that the trial court erred in admitting evidence that defendant was a gang member and that witnesses were afraid to testify because of defendant’s status as a gang member, when no gang enhancement was charged. Defendant’s contention has no merit and we affirm the judgment.

Appellant Shenian Law Firm appeals from an order denying its petition to compel arbitration. The court found appellant had waived its right to contractual arbitration. We affirm.

Miller, Kaplan, Arase & Co. (Miller Kaplan) appeals from a $4,500 sanctions order in a discovery dispute originating in Massachusetts, contending the trial court violated its due process rights by failing to inform it what conduct or circumstances justified the imposition of sanctions. It also contends the sanctions order was substantively unsupported by California law. We agree with the first contention, do not reach the second, and reverse the sanctions order.

In this shareholder derivative action, plaintiff alleged she made a written demand on the board of directors to remedy the board’s repeated breach of its fiduciary duty to shareholders and, in response, the board failed to investigate and remedy the alleged wrongdoing. Plaintiff named the company as the nominal defendant, and named as individual defendants fourteen current and former officers and directors. After bringing an unsuccessful demurrer, defendants filed an answer.
Subsequently, defendants filed a motion for judgment on the pleadings, contending they had responded to plaintiff’s demand and properly refused it, as reflected in letters sent to plaintiff after this action was filed. The trial court took judicial notice of the letters and granted the motion on the ground that the evidence proved the board had taken appropriate steps in response to the demand. Judgment was entered for defendants.
On appeal, plaintiff argues that the trial court not only took judicial notice of the company’s letters but improperly accepted their contents as true. We conclude the trial court erred in accepting the letters for the truth of their contents. Further, even if the trial court acted properly in that respect, the correspondence merely created a factual conflict in light of the contrary allegations of the complaint. That conflict could not be resolved by way of a motion for judgment on the pleadings. Accordingly, we reverse the judgment.

Defendant and Appellant Ratanak David Kim was convicted by a jury of two counts of murder, two counts of attempted murder, and assault with a deadly weapon, with various special circumstances and gang and firearm enhancements. He appeals his convictions based on alleged errors in the trial court’s instructions to the jury. We find no error, and therefore affirm.

In the court below, respondents sued appellant for intentional and negligent misrepresentation, conversion, and unjust enrichment. Appellant filed a petition to compel arbitration of the lawsuit. The trial court denied the petition, finding that appellant did not prove, by a preponderance of the evidence, an agreement to arbitrate. This appeal followed.[1]
On this de novo review, we find that appellant did prove, by a preponderance of the evidence, an agreement to arbitrate between the parties. As a result, we reverse.

This matter stems from a legal malpractice action brought by Monica Molina against Janine Jeffery and Reily & Jeffery (collectively Jeffery) for failure to timely file an appeal in Molina’s underlying lawsuit against her former law partner. In this appeal, Molina challenges the summary judgment entered against her. We affirm.

On December 13, 2011, appellant Steven G. Humphries was convicted, following his plea of no contest, of two felonies: attempting by threats or violence to deter an executive officer from performing a lawful duty (Pen. Code, § 69),[1] and possession of methamphetamine for sale (Health & Saf. Code, § 11378). He admitted that he had suffered two prior terms of imprisonment arising from felony convictions (§ 667.5, subd. (b)), making him presumptively ineligible for probation under section 1203, subdivision (e)(4). As part of the plea agreement, the prosecution moved to dismiss a charge of transportation, selling or furnishing methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and an allegation that Humphries had suffered a prior “strike” conviction for burglary (§ 667, subds. (b)–(i)). Humphries was advised that the maximum possible sentence he could receive was five years, eight months. The court denied probation, finding that this was not an unusual case that would overcome Humphries’s presumptive ineligibility. The court found that, even if Humphries had been eligible for probation, he would not be a suitable candidate for probation given his numerous prior convictions and his poor prior performance on probation and parole. The court sentenced Humphries to prison for the maximum term of five years, eight months: imposing the three-year upper term for possession of methamphetamine for sale; an eight-month consecutive term for resisting an executive officer; and one consecutive year for each the two prior prison terms Humphries had served. Humphries was awarded 140 days of presentence credits. Among other fines and fees, the court ordered a $1,200 restitution fine and a $1,200 parole revocation restitution fine.
A timely notice of appeal was filed on February 16, 2012. The notice of appeal recites that it is based on “the sentence or other matters occurring after the plea that do not affect the validity of the plea.” (Cal. Rules of Court, rule 8.304(b).) No certificate of probable cause (§ 1237.5), permitting pursuit of other issues, was requested.

Thomas Turner appeals from an order extending his commitment as a mentally disordered offender (MDO). (Pen. Code, §§ 2970, 2972.)[1] His counsel on appeal has filed an opening brief asking this court to conduct an independent review of the record under Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende). Because this review is not available in an appeal from an MDO extension order, we dismiss the appeal.

Quincy Dean Norton (appellant) appeals from a judgment entered after a jury convicted him of first degree murder. (Pen. Code, §§ 187, 189.) He contends his conviction must be reversed because (1) the trial court erred when it prevented him from presenting evidence concerning the prior misconduct of a third-party culpability suspect, (2) the court erred when it admitted evidence of his own prior misconduct, (3) the court erred when it admitted expert evidence about intimate partner battering syndrome and its effects, (4) the court erred when it denied his pretrial motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), and (5) his conviction of first degree murder is not supported by substantial evidence. We conclude the trial court did not commit any prejudicial errors and will affirm.