CA Unpub Decisions

Plaintiff and appellant Jose Dumas agreed to sell a piece of agricultural property to defendant and respondent Gary Nishida. As part of the transaction, Nishida signed a note in favor of Dumas for $600,000, secured, in part, by a deed of trust on Nishida’s home. When Nishida defaulted on the note, Dumas foreclosed on the deed of trust, obtaining Nishida’s home with a credit bid. Dumas also brought suit against Nishida for the deficiency, as well as an additional amount which, allegedly, should have been paid to Dumas by the escrow holder for the original transaction, but was not. The trial court granted judgment on the pleadings in favor of Nishida without leave to amend Dumas’s breach of contract cause of action, and denied Dumas’s subsequent written motion for leave to amend the complaint to allege a cause of action for unjust enrichment. The trial court also imposed sanctions against Dumas’s counsel, Attorney John Clark Brown, Jr., for bringing a frivolous motion for leave to amend the complaint. Dumas appeals the judgment and Attorney Brown appeals the award of sanctions. We affirm the judgment, reverse the sanctions order, and remand for further proceedings on the motion for sanctions.

Saul Deleon, for himself and as class representative, appeals from the trial court’s denial of class certification of wage-related claims against his former employer, Airtouch Cellular, doing business as Verizon Wireless (Verizon Wireless).[1] The trial court denied certification before the California Supreme Court decided Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker). Deleon contends that in light of Brinker, the trial court’s order denying class certification was based on erroneous legal assumptions regarding the timing of meal periods and rest breaks, and the order also was based upon improper criteria.
We conclude the trial court’s denial of the meal period subclasses, including those nonexempt California employees claiming they were provided a late meal period or denied a second meal period, is not based upon erroneous legal assumptions but is consistent with Brinker, supra, 53 Cal.4th 1004 and supported by substantial evidence. On the question of rest break subclass certification, we conclude that appellant waived any claim that the trial court’s decision is based on an erroneous legal assumption regarding the timing of rest breaks, and the trial court did not abuse its discretion in concluding common issues do not predominate. With respect to the contested subclass seeking unreimbursed business expenses incurred while participating in the company’s concession phone program, the trial court’s decision to deny class certification is not based upon improper criteria. Accordingly, we affirm.

Keven B. appeals from the juvenile court’s order declaring him a ward of the court after finding he committed second degree robbery and placing him home on probation. During the pendency of the appeal, the parties were unable to produce a viewable copy of a DVD of a security camera videotape that had been admitted into evidence and viewed by the juvenile court during the jurisdiction hearing. Keven contends that the People’s failure to produce a viewable copy of the DVD deprives him of his constitutional rights to meaningful appellate review of his challenge to the sufficiency of the evidence and, alternatively, that the evidence is insufficient to establish that he aided and abetted the commission of the robbery. Keven further argues one of the conditions of his probation is overbroad. We affirm.

Petitioner Michael Murray (Murray), a criminal defendant below, seeks extraordinary relief from the trial court’s order quashing a subpoena duces tecum (SDT) which defense counsel had issued and which was served upon a third party. The People filed a motion to quash the SDT, asserting the legal position that a third party individual could not be served with an SDT initiated by the defendant in a criminal case. After three hearings, on June 28, 2012, the court granted the motion to quash, concluding that Penal Code section 1326 “does not authorize the defense to issue subpoenas to individuals, non-businesses.”[1]

After a contested jurisdictional hearing, the juvenile court found that appellant Steven R. had committed six counts and appellant Jeremy R. had committed one count of forcible lewd conduct on a child under 14 (Pen. Code, § 288, subd. (b)(1)). Steven and Jeremy were both placed on probation. On appeal, both Steven and Jeremy contend that (1) the evidence was insufficient to support the court’s jurisdictional findings, (2) their trial counsel were prejudicially deficient in failing to object to the admission of the victim’s notes about their offenses, (3) the trial court erred in excluding some defense evidence, (4) the prosecutor engaged in prejudicial misconduct in his examination of defense witnesses and a rebuttal witness, (5) the court utilized the wrong standard to determine their knowledge of the wrongfulness of their conduct, (6) the court improperly relied on extrajudicial information in making its jurisdictional findings, (7) the court erred in denying their request for a jury trial, (8) some of the probation conditions are invalid or require modification, (9) the court erred in its imposition of general fund fines and penalty assessments, and (10) the court erred in ordering payment of attorney’s fees in the absence of substantial evidence of ability to pay. Steven individually asserts that his trial counsel was prejudicially deficient in failing to object to the admission of recordings of a pretext call and a police interview with him. Jeremy separately contends that the court erred in ordering a copy of the transcript of the pretext call between the victim and Steven to be provided to Jeremy’s counselor. We reject their challenges to the court’s jurisdictional findings. However, we remand these matters with directions for the court to modify the probation conditions, clarify the amount of Steven’s general fund fine, and state the statutory bases for the general fund fines and penalty assessments imposed on both Steven and Jeremy.

Lezlie J. Gunn appeals from the trial court’s order granting the motion of Mai Kai Community Association (the Association) to strike or tax Gunn’s memorandum of costs. Although the Association voluntarily dismissed its lawsuit against Gunn before she responded to the complaint, her memorandum of costs sought to recover nearly $145,000 which included $134,070 in attorney fees.
We resolve doubts about our appellate jurisdiction by exercising our discretion to treat Gunn’s appeal as a petition for writ of mandate. We deny writ relief. Gunn did not file a properly noticed motion to recover attorney fees, which was ground alone to strike her request for such fees. The trial court also did not err in finding that neither Gunn nor the Association was the prevailing party under Civil Code section 1354, subdivision (c) (section 1354(c)). We deny the Association’s request for sanctions on appeal because the Association did not file a separate sanctions motion.

Appellant Milton Bieber sued Robert T. Ha for medical malpractice in connection with Ha’s diagnosis and treatment of his prostate cancer. Bieber alleges that Ha failed to adequately monitor his blood tests and perform a rectal exam, which caused his cancer to spread. Ha filed a motion for summary judgment supported by an expert declaration that he met the standard of care. Bieber’s opposition was not supported by an expert declaration or a separate statement of disputed facts. The trial court granted the motion. Bieber appeals from the judgment following the order granting summary judgment, claiming it was error for the trial court to grant the motion based on his failure to hire an expert.
During the pendency of this appeal, Ha moved for a determination that Bieber is a vexatious litigant under Code of Civil Procedure section 391, subdivision (b). Ha seeks (1) an order declaring Bieber to be a vexatious litigant; (2) if Bieber is found to be a vexatious litigant, an order requiring him to show the appeal has merit before it can continue; and (3) a prefiling order prohibiting Bieber from filing any new litigation without first obtaining permission.
We affirm the judgment. We also find Bieber is a vexatious litigant and issue a prefiling order. We deny as moot Ha’s request that Bieber show the appeal has merit.

Appellant raises various evidentiary issues which we find lack merit. We find his equal protection argument also lacks merit. We affirm.

Prior to being released on parole after his latest convictions for sex offenses committed on a child under 14 years of age, the Orange County District Attorney filed a petition to have appellant Sidney Nathaniel Landau committed as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA), Welfare and Institutions Code section 6600 et seq.[1] More than seven years after the filing of the petition, the third jury to hear the matter found appellant met the criteria for commitment as an SVP. Appellant raises a multitude of issues on appeal, including inter alia, that he was denied due process when he was not brought to trial in a timely manner, he was denied due process when his initial SVP evaluators used unlawful underground regulations, he was denied effective assistance of counsel, the court should have suppressed evidence obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures, the court prejudicially erred when it ordered appellant to submit to mental examinations by experts retained by the district attorney, and the present SVPA violates equal protection, due process, ex post facto, and double jeopardy.
While the appeal was pending, the California Supreme Court decided People v. McKee (2010) 47 Cal.4th 1172 (McKee I). The court found SVP’s are similarly situated with individuals found not guilty by reason of insanity (NGI’s) and mentally disordered offenders (MDO’s) for equal protection purposes. The court then remanded the matter to the trial court to hold a hearing to determine whether the People could justify “the differences between SVP and NGI commitment statutes.” (Id. at p. 1207.) We suspended further proceedings in this appeal pending the remand in McKee I and the finality of an appellate court decision reviewing the hearing to be held on remand.
The San Diego Superior Court found the People carried their burden and found no equal protection violation. Our brethren in Division One affirmed the finding (People v. McKee (2012) 207 Cal.App.4th 1325, 1350 (McKee II), and the Supreme Court denied review. After McKee II became final, we asked for and obtained supplemental briefs from the parties on the equal protection issue. We now affirm.

Melissa H. (mother) appeals from the juvenile court’s order denying her petition pursuant to Welfare and Institutions Code section 388[1] that alleged sufficient changed circumstances to have her children returned to her. We reject mother’s contention and affirm the juvenile court’s order.

Clayton P. (father) appeals an order issued at a contested combined six- and twelve-month review hearing terminating his reunification services as to his daughter, S. He contends (1) there was insufficient evidence to support the finding he was provided reasonable reunification services and (2) the juvenile court abused its discretion when it terminated his services. We affirm.

On July 1, 2011, appellant, Stephen Allan Lilly, was charged in a criminal complaint with battery of a nonprisioner by a prison inmate (Pen. Code, § 4501.5, count 1)[1] and felony interference with an executive officer (§ 69, count 2). The complaint alleged three prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)) and two prior prison term enhancements (§ 667.5, subd. (b)).
On November 14, 2011, appellant entered into a plea agreement in which he would admit count 2 and all three prior serious felony allegations. In exchange for appellant’s plea, he would receive a stipulated sentence of 32 months in prison and the remaining allegations would be dismissed and two prior serious felony allegations would be stricken.[2] The court determined that appellant had initialed and executed a felony advisement of rights and change of plea form, that he had discussed his rights with his counsel, and that he understood his rights. Appellant waived his Miranda[3] rights. The parties stipulated to a factual basis for the plea.[4]
Appellant admitted count 2 and all three prior serious felony allegations. The court struck two prior serious felony allegations. On December 14, 2011, the court sentenced appellant pursuant to the plea agreement to prison for 32 months to be served consecutively to the term he was already serving in state prison.

R.P. (father) appeals the termination of his parental rights (Welf. & Inst. Code,[2] § 366.26) at the June 8, 2012, hearing with regard to his son, S.P. He contends he was denied his due process right to effective assistance of counsel when none of his attorneys objected to the court’s visitation orders. We disagree, and affirm.

On November 9, 2010, the San Bernardino County District Attorney filed a petition under Welfare and Institutions Code section 602 alleging that minor and appellant, A.P., had committed two counts of first degree residential burglary under Penal Code section 459 (counts 1 & 2); and trespass under Penal Code section 602, subdivision (m) (count 3).[1]
At a pretrial hearing on November 29, 2010, the district attorney amended the petition to allege that minor had also committed second degree commercial burglary under section 459 (count 4). Minor admitted count 4; and counts 1, 2 and 3 were dismissed. The juvenile court then made a true finding as to count 4 and sustained the balance of the petition.
At the dispositional hearing on December 9, 2010, the juvenile court declared minor a ward, granted him probation, and placed him in the custody of his mother.