CA Unpub Decisions

Brian Zulli appeals the order dismissing his complaint against Mortgage Electronic Registration Systems, Inc. (MERS), following the sustaining of a demurrer without leave to amend. Appellant contends he sufficiently pled causes of action against MERS arising from the nonjudicial foreclosure on his now-deceased mother’s residence. We affirm.

Plaintiff and appellant Central Escrow, Inc., appeals from four orders granting special motions to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP statute)[1] and an order awarding attorney fees in favor of defendants and respondents Audrey Soh, Jeenah Huh, their attorney William W. Bloch and his law firm Excelus Law Group, Inc., and their trial attorneys Greg Martin, David M. Almaraz, and the law firm of Hamburg, Karic, Edwards & Martin, LLP (HKEM) in this malicious prosecution action based on a sexual harassment lawsuit. Central contends: 1) Huh’s motion to strike and Bloch and Excelus’s motion to strike were untimely, and the trial court lacked jurisdiction to hear them; 2) Central showed a probability of prevailing on its malicious prosecution claims; and 3) the trial court abused its discretion in awarding attorney fees to Soh, Huh, Bloch, and Excelus.
We hold the trial court did not abuse its discretion by allowing Huh, Bloch, and Excelus to file their motions to strike, nor did the court lack jurisdiction to hear their motions. We also conclude the denial of attorney fees on the FEHA causes of action in the underlying case precludes Central’s malicious prosecution action. The court did not abuse its discretion in awarding attorney fees to Soh. Therefore, the orders granting the motions to strike and awarding attorney fees are affirmed.

Vincent Smith appeals a judgment following conviction of first degree murder and burglary, with findings of commission of murder during the burglary, commission of the crimes to benefit a criminal street gang, discharge of a firearm by a principal during commission of the crimes causing death, one prior serious felony strike conviction, and service of two prior prison terms. (Pen. Code, §§ 187, subd. (a), 189, 459, 190.2, subd. (a)(17), 186.22, subd. (b)(4), former 12022.53, subds. (b)-(e), 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).)[1] We modify the judgment to strike the stayed parole revocation restitution fine, and to award Smith an additional 31 days of presentence actual custody credit, but otherwise affirm. (§§ 1202.45, 2900.5, subd. (a).)

Treauna Turner was convicted of the murder of Yolanda Kennard (Pen. Code,[1] § 187). She appeals her conviction on multiple grounds. We affirm.

Appellant D.M. (mother) challenges an order under which the juvenile court assumed dependency jurisdiction over her daughters and removed them from her custody. (Welf. & Inst. Code, §§ 300, 361, subd. (c)(1).)[1] She argues that the judgment must be reversed because the evidence was insufficient to support the court’s jurisdictional and dispositional findings. We disagree and affirm the judgment.

Defendant Dave Dae Hong Kim appeals from the June 15, 2012, postjudgment order directing him to pay restitution on behalf of victim Jack Stotts, Jr., totaling $9,153.42. (See Pen. Code, § 1202.4; all statutory citations are to the Penal Code, unless noted otherwise.) We appointed counsel to represent Kim. Counsel filed a brief setting forth a statement of the case, but advised this court he found no issues to support an appeal. We provided Kim 30 days to file his own written argument, and he has responded with a supplemental brief filed January 22, 2013. After conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we affirm.

Defendant Kevin Ho filed notices of appeal in his two criminal cases. We appointed counsel to represent Ho and consolidated the appeals. Counsel filed a brief setting forth a statement of the case, but advised this court she found no issues to support an appeal. We provided Ho 30 days to file his own written argument, but he has not responded. After conducting an independent review of the record under People v. Wende (1979) 25 Cal.3d 436, we affirm.

A modification decision.

Appellant is a juvenile sex offender whose confinement was extended after a jury determined that, if released, he would be physically dangerous to the public due to a mental disorder that causes him to have serious difficulty controlling his behavior. (See Welf. & Inst. Code, §§ 1800, et seq.) He contends his jury was misinstructed on the law and its verdict is not supported by substantial and reliable evidence. He also contends he was denied equal protection because he was not afforded the same procedural protections that are provided to other inmates who are subject to involuntary commitment. Finding no basis to disturb the judgment, we affirm.

Plaintiff Amanda Selby appeals from a judgment entered after defendant Cingular Wireless (Cingular) made a successful motion for judgment on the pleadings. Selby’s lawsuit is for injunctive relief only; it is based on the theory seven provisions of Cingular’s customer agreement violate California’s Consumer Legal Remedies Act (CRLA), Civil Code sections 1750-1784.[1] However none of the provisions Selby claims violate the CRLA have ever been enforced against her – with one exception. Under Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634 (Meyer), unless a plaintiff has suffered some “damage” from the enforcement of a contract provision which allegedly violates the CRLA, the plaintiff has no standing to pursue a claim based on the theory the contract provision violates the CRLA.
The one exception complicates this case. Back in 2005, about six years before the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion (2011) ___ U.S. ___, 131 S.Ct. 1740 (Concepcion), Cingular filed a motion to compel arbitration of Selby’s claims. The motion was ultimately unsuccessful, because California law at the time was clear a suit for injunctive relief only under the CRLA was immune from contractual arbitration provisions. (See Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066 (Broughton).) In the process of opposing the motion to compel, Selby may have incurred liability for about $25,000 in attorney fees.

A jury convicted Jason Alan Marian of possessing child pornography (Pen. Code, § 311.11, subd. (a); all further undesignated statutory references are to this code), six counts of using a minor to produce material depicting sexual conduct (§ 311.4, subd. (c)), secretly filming another with intent to arouse, a misdemeanor (§ 647, subd. (j)(2)), two counts of sexual penetration of a minor by a foreign object (§ 289, subd. (h)), and two counts of oral copulation of a minor (§ 288a, subd. (b)(1)). The trial court granted Marian a new trial on one count of use of a minor in material depicting sexual conduct and one count of sexual penetration with a foreign object (the beach charges), the prosecutor declined to retry those charges, and the trial court sentenced Marian to an aggregate prison term of two years and eight months. Marian argues his convictions must be reversed because the trial court should have granted his pretrial motions to sever charges arising from his surreptitious filming of his 12- to 14-year-old dance students from charges of sexual penetration and oral copulation of his 15-year-old student, Mary F. He contends the trial court erred in failing to grant his new trial motion on all of his convictions. As we explain, none of these contentions has merit, and we therefore affirm the judgment.

Brothers Jorge and Juan Garcia were convicted of special circumstances murder for killing a rival gang member.[1] They contend there is insufficient evidence to support the prosecution’s theory the killing was gang related, the court erred in admitting a false statement Jorge made about Juan after the killing, and the court erred in allowing lay testimony regarding the accuracy of a witness’s identification. We find these contentions unmeritorious, and other than to correct an undisputed sentencing error, affirm the judgment in all respects.

Upon being convicted of kidnapping and assault with the intent to rape, appellant Son Kim Tran was sentenced to 55 years to life in prison. He contends he was incompetent to stand trial and there is insufficient evidence to support his kidnapping conviction, but we disagree and affirm the judgment.

Melissa Z., in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders denying her petition filed under Welfare and Institutions Code section 388[1] seeking reinstatement of reunification services as to her eight-, six-, and four-year-old daughters and setting a section 366.26 hearing. She contends the juvenile court erred in finding that she made poor progress and that there were not changed circumstances. We disagree and deny the petition.