CA Unpub Decisions

A modification decision.

Defendant and appellant Hany Malek (Malek) appeals from two orders of the trial court: (i) an order adopting the findings of a referee concerning the validity of claims of third-party creditors against the assets of the receivership estate; and (ii) an order denying Malek’s motion to disqualify plaintiff and respondent Michael Koshak’s (Koshak) attorney, the receiver, and their respective law firms. According to Malek, certain findings of the referee were made without proper notice in violation of his due process rights and the trial court’s order denying his disqualification motion was an abuse of discretion.
We hold that Malek forfeited his due process challenge because he failed to raise that issue in the trial court. We further hold that the trial court did not abuse its discretion in denying Malek’s motion to disqualify because that motion was not supported by competent evidence showing unauthorized disclosure and use of privileged documents. Therefore, we affirm the two orders from which Malek appeals.

Plaintiff Lee Jensen sued his mortgage lender and other entities,[1] alleging improprieties in connection with a 2005 loan to finance Jensen’s purchase of real property and a 2010 nonjudicial foreclosure sale of the property. The trial court sustained defendants’ demurrers to Jensen’s first amended complaint (FAC), without leave to amend, and dismissed the action. On appeal, Jensen principally contends the trial court should have permitted him to amend to assert causes of action based on his allegation that the signature on the underlying 2005 deed of trust encumbering the property is not his signature and is forged. We affirm.

Frederic Ferguson appeals from a judgment of conviction and sentence imposed after a jury convicted him of possession of cocaine base and possession of narcotics paraphernalia. (Health & Saf. Code, §§ 11350, subd. (a), 11364.) He contends: (1) the court erred by depriving him of his right to represent himself and by ordering competency proceedings, which resulted in a delay of his trial in violation of his statutory and constitutional rights to a speedy trial; and (2) the evidence against him should have been suppressed because police recovered it as the result of an unlawful vehicle stop. We will affirm the judgment.

Frederic Ferguson appeals from an order finding that he violated his probation. He contends the court erred because the sole basis for the order was his conviction for possession of drugs and drug paraphernalia in another case, for which he seeks reversal in appeal number A133113. Because we are affirming the conviction in appeal number A133113, we will affirm the order finding that he violated his probation in this case.

The juvenile court committed the minor Juan D. (appellant), born in May 1994, to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ).[1] To do so, the court dismissed appellant’s most recent juvenile delinquency petition (Welf. & Inst. Code, § 602),[2] which alleged an offense that did not qualify him for a DJJ commitment (§ 733, subd. (c)) (section 733(c)) and reached back to an earlier petition that alleged a DJJ‑eligible offense (§ 707, subd. (b)). On appeal, we reversed the order of commitment, concluding the court lacked authority under section 782 to dismiss appellant’s most recent petition in order to commit him to DJJ.
The Supreme Court granted review, and it recently transferred the matter back to this court for reconsideration in light of In re Greg F. (2012) 55 Cal.4th 393 (Greg F.). Greg F. held dismissal of a petition for the purpose of allowing a DJJ commitment on a minor’s previously-sustained section 602 petition is appropriate under section 782 so long as the juvenile court finds that the dismissal is required by the interests of justice and the welfare of the minor. (Id. at p. 420.) Following Greg F., we affirm the juvenile court’s orders.

This case arises out of gang violence in Richmond and San Pablo that resulted in five deaths. Appellant Jose Garcia Martinez appeals from the judgment following a jury trial in which he was convicted of one count of second degree murder and of conspiracy to commit the assault that resulted in the victim’s death. Appellant contends the trial court erroneously instructed the jury on invalid theories of second degree felony-murder, thereby depriving him of due process and necessitating reversal. We will affirm.

Mario Cota Becerra, the defendant herein, suffers from a form or forms of schizophrenia. His mental condition may have been an impetus to a history of stealing from people. In the current case, he pleaded no contest to second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) On appeal, he claims that confining him in state prison is unconstitutional given his mental illness. He also claims that the trial court committed errors regarding his presentence credits.
We will modify the judgment with respect to defendant’s presentence credits, and as so modified will affirm it.

Orange County Social Services Agency (SSA) detained the minors Diane and Tiffany N. in October 2011, after their mother, B.N., called the police to prevent her from murdering Diane. The two girls found refuge with a family friend who, in a true Hollywood ending, turned out to be their father. Efforts to arrange consistent visitation between the girls and their mother proved fruitless, as B.N. simply could not keep from reverting to old habits of criticism and verbal abuse while she was with the children.

Marco V. appeals from a juvenile dependency order terminating his reunification services as to his 12-year-old daughter and 10 and eight-year-old sons at a contested 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)).[1] Marco contends the juvenile court erred in terminating his services. We disagree and affirm the order.

On September 7, 2011, an information charged defendant and appellant Danny Jerome Conley with two counts of unlawfully selling cocaine under Health and Safety Code section 11352, subdivision (a) (counts 1 & 2). As to both counts, the information also alleged that defendant was convicted of a prior felony for violating Health and Safety Code section 11352, subdivision (a), within the meaning of Health and Safety Code section 11370.2, subdivision (a). The information further alleged that defendant had suffered 11 prior prison term convictions, within the meaning of Penal Code section 667.5, subdivision (b).
On November 30, 2011, defendant moved to relieve counsel and to represent himself. The trial court addressed defendant’s concerns with his attorney, but denied the request to relieve counsel. As for defendant’s request to represent himself, the trial court suggested that defendant discuss the matter further with his attorney.

Defendant and appellant Edgar Vasquez appeals his conviction on 10 counts arising from the robbery of three people at a place of business. He contends that Penal Code[1] section 654 bars unstayed sentences on a number of counts. He also contends that a conviction for false imprisonment as to one victim must be reversed because as to that victim, he was also convicted of kidnapping, and false imprisonment is a necessarily included lesser offense.
The Attorney General agrees with defendant to a great extent. However, she contends that section 654 does not apply to the kidnapping count or to one count of false imprisonment pertaining to a different victim.
We agree with defendant, except that we conclude that section 654 does not apply to the kidnapping count.

Samuel Ayoub (Ayoub) a licensed realtor and real estate investor hired Robert W. Dyess, Jr., (Dyess) and his law firm, Good Wildman Hegness & Walley (the Law Firm), to prepare documentation to form a limited partnership, and a limited liability company, and an agreement for the purchase of an apartment building with several other investors as tenants in common. Dyess prepared documents to create The Eastwood Ranch, LP, (hereafter the Eastwood Partnership), a Delaware limited partnership to act as owner of the property, and The Eastwood Ranch GP, LLC, (hereafter Eastwood GP) to act as the general partner of the Eastwood Partnership. Ayoub was named the managing member of Eastwood GP. Dyess drafted the tenancy in common agreement (TIC Agreement), executed by the Eastwood Partnership and several other investors purchasing the apartment building together.
After the building was purchased, Ayoub discovered problems with Dyess’s drafting of the TIC agreement. Ayoub, Eastwood Partnership, and Eastwood GP (hereafter referred to collectively as Plaintiffs, unless otherwise required to avoid confusion), filed a legal malpractice lawsuit against Dyess and the Law Firm. The sole issue raised on appeal is whether the trial court erred in awarding summary judgment and denying a motion for new trial on the grounds Plaintiffs’ malpractice action was barred by the one-year statute of limitations. (Code Civ. Proc., § 340.6.)[1] We affirm the judgment.

Plaintiff Diem T. Nguyen, a disgruntled condominium resident, sued defendants (a homeowners’ association, its board of directors, and a property management firm) for allegedly failing to maintain the complex’s common areas. Plaintiff appeals a judgment of dismissal entered after the trial court granted defendants’ unopposed motion for summary judgment. Defendants established in their motion for summary judgment that plaintiff no longer owned a condominium within the association as of 2010 and she therefore lacked standing to seek declaratory relief with regard to maintenance of the common areas. Moreover, defendants established that plaintiff had not suffered monetary damages as a result of defendants’ alleged failure to maintain common areas. We affirm.