CA Unpub Decisions

Silvana Fotheringham sued her former employer, Avery Dennison Corporation. After lengthy litigation involving two trials and multiple appeals, the trial court entered a judgment including a determination of costs and attorney fees pertaining to an earlier phase of the litigation. Fotheringham appeals this award. We affirm.

Plaintiffs and appellants Anooshavan Sarkisian and Roobina Sarkisian (plaintiffs or the Sarkisians), husband and wife, challenge the validity of a foreclosure sale of their real property located at 1418 Norton Avenue in Glendale (the property). They contend that defendants and respondents U.S. Bank, N.A. (U.S. Bank), Countrywide Home Loans Inc. (Countrywide), Recontrust Company, N.A. (Recontrust), Bank of America, N.A. (B of A), BAC Home Loans Servicing, LP (BAC) and Darrell Schiffer (collectively, the bank defendants) engaged in a tortious scheme to obtain title and possession of the property. Plaintiffs’ first amended complaint (FAC) set forth numerous causes of action, including quiet title. The trial court sustained the bank defendants’ demurrer to the FAC and then entered judgment in their favor. On appeal, plaintiffs’ main argument is that the trial court erroneously sustained the demurrer. We shall reject all of plaintiffs’ arguments and affirm the judgment.

This appeal had its inception in a wrongful death and survival action brought by plaintiffs, William Schultz and Carol Schultz, as a result of the death of their son. The action was filed against the following defendants: Dr. Michael Schwartz, Avis Rent-A-Car and numerous fictitious defendants, namely Does 1-60. Dr. Schwartz and Avis Rent-A-Car settled with the plaintiffs and their Motion for Good Faith Settlement was approved by the trial court on January 25, 2011. The death of plaintiffs’ son occurred when Dr. Schwartz was driving to the airport in Los Angeles in a rented vehicle to go to Phoenix, Arizona to give a lecture to the staffs of mental health clinics in the Arizona counties of Maricopa and Pinal. Appellant, Mental Health America of Los Angeles (“MHA”), was brought into plaintiffs’ action as Doe No. 11 on April 1, 2010, on the grounds that Dr. Schwartz was allegedly acting as an employee of MHA at the time of the accident thereby making MHA responsible to plaintiffs on the theory of respondeat superior. MHA contends there was no employment relationship with Dr. Schwartz at the time of the accident and he was being paid by an entity known as AstraZeneca (“AstraZeneca”) which gave rise to a legitimate claim for indemnity, contribution and declaratory relief by MHA, which it raised by way of cross-complaint against AstraZeneca. The trial court found no duty was stated in the cross-complaint and sustained the demurrer of cross-defendant AstraZeneca without leave to amend, giving rise to this appeal by MHA. For the reasons hereafter stated we reverse the judgment of the trial court.

Defendant and appellant Charles Ifeanyi was convicted by jury of attempted kidnapping, in violation of Penal Code sections 664 and 207.[1] The trial court sentenced defendant to the low term of 18 months in state prison.
In his timely appeal from the judgment, defendant makes the following arguments: (1) there was insufficient evidence to support the conviction, which violates defendant’s constitutional right to due process under the Fourteenth Amendment; and (2) the trial court committed prejudicial error and violated his right to due process and a fair trial by not instructing on lesser included offenses. Finding no merit in either contention, we affirm the judgment.

Plaintiffs and appellants Robert Pope, Michelle Agul, Ravi Sawhney, Myer Solovy, and David L. Cherin and Mojgan V. Cherin as trustees of the David and Mojgan Cherin Family Trust filed a first amended complaint for declaratory relief against defendant and respondent The Oaks of Calabasas Homeowners Association challenging the amount of a monthly assessment.[1] Respondent cross-complained against Pope for declaratory relief, indemnification, and damages. Following a court trial, judgment was entered declaring the appropriate assessment was $163.98. The cross-complaint was dismissed as moot. Respondent was found to be the prevailing party.

Appellant Steven Braun, a former manager for Toyota Motor Sales, U.S.A., Inc. (Toyota), sued respondents Toyota and Randall Bauer (Bauer), his supervisor at Toyota, for sexual harassment and wrongful termination. The trial court granted Toyota’s motion to compel production of any data storage files containing either photographs appellant might have taken of Bauer’s office or photographs of appellant from 2000 through 2010. Because appellant had downloaded photographs covered by the order onto his home computer, in order to comply with the order, he had to produce his computer for inspection and copying. Before doing so, he deleted more than 42,000 files which he claimed were privileged under the right of privacy. He left on the computer more than 13,000 photographs covered by the order. Based on appellant’s violation of the order compelling discovery, the trial court granted Toyota’s motion for a terminating sanction. In this appeal, we conclude that the court did not abuse its discretion by ordering discovery of the data storage files in the first place, but that the court did abuse its discretion in terminating the action. We therefore reverse the judgment of dismissal and remand the case for the court to consider appropriate sanctions short of termination.

Defendant and appellant Gary Kurtz (husband) appeals two orders pertaining to spousal and child support payable to plaintiff and respondent Starr F. Taxman (wife).
The first order in issue is a temporary support order entered February 5, 2010, ordering support in the amount of $9,935 per month. The temporary support order was operative from the time of pronouncement, and was directly appealable. Therefore, the notice of appeal filed July 1, 2011 is untimely as to said order.

After 16 years as a member of the San Francisco police force, Inspector Marvetia Lynn Richardson was terminated by the San Francisco Police Commission (Commission) for misconduct arising out of three separate incidents. Richardson filed a petition for writ of administrative mandamus in the San Francisco Superior Court seeking reinstatement, back pay, and damages. The court affirmed the Commission’s decision in all regards. Richardson appeals, asserting numerous challenges to the court’s order denying her petition. We affirm.

Atualevao challenges the sufficiency of the evidence in proceedings under the SVPA. We apply the familiar standard applicable in criminal cases. “[T]his court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be ‘ “of ponderable legal significance . . . reasonable in nature, credible and of solid value.” ’ ” (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) “In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment.” (People v. Poe (1999) 74 Cal.App.4th 826, 830.) We do not reassess the credibility of experts or reweigh the relative strength of their conclusions. (Id. at p. 831.) We reverse if, and only if, no rational trier of fact could have found the essential elements beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269.)

Petitioner Luis Daniel Rios was convicted of four felony counts. Three Penal Code section 12022.55[1] allegations were also found true. This court concluded that instructional error had occurred and remanded the case with directions that Rios either be retried on the section 12022.55 allegations “within 60 days of the filing of the remittitur in the trial court” or resentenced without enhancements. Rios was not retried within 60 days, so he moved to dismiss the enhancements and for resentencing. The trial court denied the motion and calendared a trial setting date on the enhancement allegations. This court issued a peremptory writ of mandate in the first instance directing the trial court to grant the motion to dismiss and resentence Rios as directed in the earlier remittitur. The trial court complied with these directions. The People then filed a new complaint indicating on its face that it was a “REFILE” of the original complaint. Rios demurred. The People conceded that Rios could not be retried on the substantive counts, and the trial court sustained the demurrer to those counts without leave to amend, but it overruled the demurrer to the enhancement allegations. Rios seeks a writ of mandate directing the trial court to sustain the demurrer in its entirety and to dismiss the enhancement-allegations-only case against him.
We conclude that the trial court’s ruling amounted to “ ‘clear error under well-settled principles of law and undisputed facts.’ ” (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1258 (Lewis).) Accordingly, we will issue a peremptory writ in the first instance directing the trial court to vacate its order overruling Rios’s demurrer to the enhancement allegations, to enter a new order sustaining the demurrer in its entirety without leave to amend, and to enter a judgment of dismissal.

Defendants who committed their crimes on or after October 1, 2011, are eligible for presentence conduct credits calculated on the basis of two days of conduct credit for every two days of actual custody. (Pen. Code, § 4019, subds. (b), (c) & (f).)[1] Defendants who committed their crimes before October 1, 2011, are eligible for conduct credits at the previous rate of two days for every four days in custody. (Id. subd. (h).) Defendant, who committed his crime in April 2011, appeals from a judgment and contends that affording him a lower level of conduct credits solely because he committed his crime before October 1, 2011, violates his constitutional right to the equal protection of the laws. We conclude that the right to equal protection does not prevent the Legislature from limiting the increased level of presentence conduct credits to detainees who committed their crimes on or after the October 1, 2011, operative date of the statute. We therefore affirm the judgment.

On October 7, 2011, appellant pleaded guilty to and was sentenced for a commercial burglary he had committed about three weeks earlier, on September 18. In between, on October 1, a statutory amendment that allows inmates to accrue presentence conduct credits at an enhanced rate became effective. Appellant contends he is entitled to receive conduct credits at that enhanced rate for the seven days he was in custody between the time the amendment became effective and the time he was sentenced. Following this court’s opinion in People v. Rajanayagam (2012) 211 Cal.App.4th 42 (Rajanayagam), we reject that contention and affirm the trial court’s decision to award appellant conduct credits at the preamendment rate.

Jose Francisco Gonzales entered into a plea agreement whereby he pled guilty to second degree burglary (Pen. Code, §§ 459/4600), fraudulent use of a credit card (Pen. Code, § 484g, subd. (a)) and attempted grand theft (Pen. Code, §§ 664/487). He was placed on probation for three years with typical terms and conditions, including incarceration (for which he was given credit for the time he had already served, and was released). As part of his plea agreement, he waived his right to appeal from any legally authorized sentence the court might impose within the limits of the plea agreement. Nonetheless, Gonzales timely filed a notice of appeal, challenging both the plea and admissions and the sentence. He sought a certificate of probable cause pursuant to Penal Code section 1237.5 and was denied.

A jury found appellant, Jason Rodney Turzai, guilty of petty theft with prior convictions for theft-related offenses (Pen. Code,[1] §§ 484/666; count I), transportation of methamphetamine (Health & Saf. Code, § 11379, subd., (a); count II), and misdemeanor battery (§ 242; count III.) Appellant admitted he served four prior prison terms (667.5, subd. (b)). The trial court sentenced appellant to prison for a total term of 10 years. On appeal, appellant contends: (1) the trial court erred when it failed to instruct the jury sua sponte on self-defense with respect to the battery count; and (2) he received ineffective assistance of counsel. We conclude no prejudicial error occurred and affirm the judgment.