CA Unpub Decisions
California Unpublished Decisions
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In this litigation, plaintiff Chabad of California, Inc., seeks to enforce the purported oral pledge of a deceased donor, the late Roland Arnall. Mr. Arnall’s widow, defendant Dawn Arnall, denies any knowledge of the purported $18 million pledge, which Chabad failed to acknowledge in writing or record in its books prior to Mr. Arnall’s death.
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Douglas Fuller, a former firefighter trainee with the Los Angeles County Fire Department, appeals the judgment entered after the trial court granted summary judgment in favor of the County of Los Angeles and County employees Dave Saran and Pitt Gilmore (collectively the County defendants) on Fuller’s claims of employment discrimination, harassment, retaliation and related torts. Fuller contends the trial court erred in concluding the claim he filed with the Department of Fair Employment and Housing (DFEH) failed to identify any protected status or activity and thus did not satisfy the exhaustion requirements of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). He also contends the court erred in concluding his non-FEHA tort claims against the County defendants are time-barred. Because Fuller did not properly exhaust his administrative remedies with respect to his FEHA claims and his tort claims, while timely, are without merit, we affirm.
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Dr. Andrew and Simone Concoff purchased a townhome from Dr. William P. Aull, after which, according to the Concoffs’ operative second amended complaint in this action, they discovered undisclosed damage from mold and water intrusion. As a result, they sued Aull and his representatives, Sotheby’s International Realty and its broker Susan Montgomery. The current appeal and cross-appeal in the action involve a lengthy procedural history, which we summarize below. In short, the result is that: (1) the appeal by the Concoffs from the judgment in favor of Aull following a bench trial is untimely and must be dismissed, (2) the cross-appeal by Sotheby’s and Montgomery is properly taken from a post-judgment order affecting their substantial rights, and (3) on the merits the cross-appeal fails.
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This appeal by defendant Verdugo Hills Hospital (the Hospital) and cross-appeal by plaintiff Aidan Ming-Ho Leung (Aidan) is before us for a second time. In our first opinion, we reversed that portion of the trial court’s judgment awarding Aidan economic damages against the Hospital. We reluctantly concluded that under the common law release rule, Aidan’s non-good faith settlement with codefendant Dr. Steven Wayne Nishibayashi and his medical corporation released the Hospital from its liability for economic damages. We left undecided four issues that were not necessary for us to address.
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Patricia Hewlett sued her mortgage lender, Chase Bank USA N.A.—Home Finance LLC[1] (“Chaseâ€). Chase successfully demurred to Hewlett’s complaint as “uncertain.†After granting Hewlett two additional chances to file a viable complaint, the court sustained Chase’s demurrer to her second amended complaint without leave to amend and entered judgment against her. She appeals, and we affirm.
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Jolynn Hardiman and Roy C. Hardiman[1] terminated their marriage in 2005 and stipulated to a judgment on reserved property and support issues that was entered in 2007. Jolynn appeals from postjudgment rulings that (1) Roy’s receipt of approximately $14 million in proceeds from his exercise of certain Genentech, Inc. (Genentech) stock options in 2005 and 2009 did not increase his child support obligations for those years; (2) Roy was entitled to $40,000 in attorney fees as sanctions for her litigation conduct; and (3) she was not entitled to fees incurred in the postjudgment proceeding based on Roy’s greater wealth. We affirm the trial court’s rulings.
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Defendant Ernesto Gutierrez was convicted by jury of simple kidnapping (Pen. Code, § 207, subd. (a)),[1] false imprisonment by violence (§§ 236, 237, subd. (a)), and dissuading a witness (§ 136.1, subd. (c)(3)). Gutierrez argues that: (1) the trial court erred by failing to instruct the jury, sua sponte, on the defenses of self-defense and necessity, and on whether Gutierrez’s movement of the victim was merely incidental to another crime; and (2) the evidence is insufficient to support his conviction of dissuading a witness. We reject these arguments. We agree with the parties that the false imprisonment conviction must be reversed, because that crime is a lesser included offense of kidnapping. We also agree with the parties that the trial court erred in sentencing, and that Gutierrez’s sentence must be corrected.
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Defendant Huguette Nicole Young appeals from a judgment convicting her of two counts of depriving a lawful custodian of the right to child custody. She contends that instructional errors by the trial court interfered with her ability to present a statutory defense based on a reasonable and good faith belief that her children were in immediate danger. In a supplemental brief, defendant argues that she received ineffective assistance of counsel based on her attorney’s failure to object to the improper instructions. Defendant also argues that the court erred in failing to award presentence conduct credits, that the court violated Penal Code section 654[1] by imposing concurrent one year jail terms as a condition of her probation, and that under section 136.2 the court lacked authority to issue a protective order as a condition of probation.
We find no error with regard to the jury instructions and reject defendant’s claim of ineffective assistance of counsel. Defendant’s contention under section 654 is similarly without merit because the jail terms were imposed as a condition of probation and are not considered punishment for purposes of section 654. The protective order was properly issued as a condition of probation under section 1203.1, and despite an apparent clerical error was not issued under section 136.2. It is undisputed that defendant was entitled to an additional 73 days of custody credits and we shall modify the judgment to reflect the additional credits. |
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Norman Feakins (Norman) and Cynthia Feakins (Cynthia)[1] were married for 17 years. After Norman was arrested for molesting Cynthia’s son from a prior marriage, he deeded his interest in their marital home to Cynthia as her separate property. Cynthia expressed her desire to continue their marriage at the beginning of Norman’s incarceration, but almost three years later, she filed for dissolution. Norman appeals from the judgment of dissolution, maintaining the court erred in determining the home was Cynthia’s separate property. He also maintains the court erred in denying him spousal support and attorney fees, reimbursement for what he asserted was his separate property contribution toward the purchase of a condominium and in valuing some of the community property. Norman lastly claims the court erred in ordering he appear by telephone rather than being transported from prison to court for the trial. We find no merit in any of these claims, and affirm. |
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Defendant Alphonso Wilson was found guilty of two counts of first degree murder (Pen. Code, § 187, subd. (a)),[1] with the special circumstance that the murders were committed during a robbery and that there was more than one murder. Wilson was sentenced to state prison for consecutive terms of life without possibility of parole.[2]
On appeal, Wilson argues that the trial court erred when it restricted his access to unpublished materials related to an interview he gave regarding the crime to a newspaper reporter, and also by excluding him and his counsel from the court’s in camera review of the reporter’s unpublished materials. He also argues the trial court erred in denying a defense motion to strike the reporter’s direct examination testimony because of restrictions placed on the cross-examination of the reporter regarding these unpublished materials. He further contends the trial court erred when it precluded his counsel from arguing that the murders were not committed during the course of the robbery but were, in fact, committed out of fear of the victims in general. Finally, he argues, and the People concede, that the trial court erred by failing to instruct the jury sua sponte that when a defendant is prosecuted for murder on an aiding and abetting theory, a murder special circumstance can be found only when the defendant acts with the intent to kill. With the exception of the trial court’s failure to instruct the jury sua sponte as to the aiding and abetting theory, we affirm the judgment. |
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Petitioner, the State Water Resources Control Board (State Water Board), is one of several parties in an administrative mandamus proceeding in respondent superior court (Code Civ. Proc.,[2] § 1094.5) brought by Millview County Water District (Millview) and individuals Thomas P. Hill and Steven L. Gomes. The case concerns the State Water Board’s cease and desist order preventing Millview from diverting more water than it is lawfully allowed to divert. By this timely petition for writ of mandate (§ 400), the State Water Board contends the superior court erred in denying its motion to transfer venue to a neutral county or refer the case to the Judicial Council for assignment of an out-of-county judge (§ 394, subd. (a), hereafter section 394(a)). We agree. Having previously stayed all proceedings in the superior court, we will order issuance of a peremptory writ.
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For many years the Haight-Ashbury Neighborhood Council (the Council) has operated a recycling center on Frederick Street within San Francisco’s Golden Gate Park. In 2011 the City and County of San Francisco (the City) terminated the Council’s tenancy and brought an unlawful detainer action when it refused to vacate. The City successfully sought summary adjudication of its claim for possession and the Council’s affirmative defenses of discriminatory and retaliatory eviction. The Council now appeals from a final judgment entered on the grant of summary adjudication after the City dismissed its claims for damages. We affirm. |
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