CA Unpub Decisions

Plaintiffs International Business Properties (IBP) and Arthur G. Lawrence appeal from a judgment of dismissal entered in favor of defendants City of Cathedral City (City), Cathedral City Redevelopment Agency, and Cathedral City Community Services District (CSD) (collectively, defendants) following an order sustaining without leave to amend defendants’ demurrer to plaintiffs’ second amended complaint (SAC). The trial court sustained the demurrer on the ground that the SAC was barred by the doctrine of res judicata. Reviewing the matter de novo, we conclude that the plaintiffs have failed to state facts sufficient to constitute a cause of action on other grounds. Accordingly, we affirm the judgment.

Plaintiff and appellant Panyiotes Charalambopoulos, through his conservators, sued defendant and respondent UHS of Rancho Springs, Inc. (UHS; UHS does business as Inland Valley Medical Center), and various medical doctors for (1) professional negligence; (2) negligent infliction of emotional distress; (3) tortious deprivation of access to medical records (Health & Saf. Code, § 123110); (4) tortious maintenance of medical records; (5) emergency medical services discrimination (Health & Saf. Code, § 1317); (6) violation of the Unruh Civil Rights Act (Civ. Code, § 51); (7) violation of emergency medical requirements (42 U.S.C. § 1395dd); and (8) interference with his constitutional rights (Civ. Code, § 51).[1]
A jury found UHS negligent in the medical care of Plaintiff; however, the jury also found Plaintiff acted negligently. The jury found UHS to be 25 percent responsible for Plaintiff’s injuries, and found Plaintiff to be 75 percent responsible for his injuries. Plaintiff was awarded $1,801,300.76, which was reduced to $37,500, due to the jury’s apportionment and a settlement offset. Plaintiff moved the trial court for (1) a judgment notwithstanding the verdict, and (2) a new trial. The trial court denied both motions.

T.G. appeals orders terminating her parental rights to her daughter M.G. and referring M.G. for adoption. She contends the court erred by not applying the beneficial parent-child relationship exception to termination of parental rights and adoption of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i).[1] We affirm the orders.

The juvenile court declared Alexis Z. a ward (Welf. & Inst. Code, § 602) after sustaining allegations he committed assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)),[1] assault with a deadly weapon (§ 245, subd. (a)(1)); battery resulting in serious bodily injury (§ 243, subd. (d)); possession of metal knuckles (§ 12020, subd. (a)(1)) and misdemeanor battery (§ 242).[2]
The court found the maximum period of confinement to be seven years. The court placed Alexis on probation and committed him to the Short Term Offender Program for a period not to exceed 90 days.
Alexis appeals, contending the true finding on the misdemeanor battery count must be reversed because the crime is a lesser included offense of felony battery, and the true finding of assault with force likely to cause great bodily injury count must be reversed because it is duplicative of the true finding on the assault with a deadly weapon count. Alexis also contends the court violated his due process rights by questioning a defense witness.

In March 2011 a petition was filed alleging that 16 year-old J.C. entered a building with the intent to commit a felony (Pen. Code, § 459; count 1). (All further undesignated statutory references are to the Penal Code.) The petition further alleged that J.C. committed an assault on the victim, Jesse G., by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 2) and attempted to kidnap Jesse G. (§§ 207, subd. (a), 664; count 3). The petition also alleged two misdemeanor violations: that J.C. possessed specified instruments with an intent to commit vandalism or graffiti (§ 594.2, subd. (a); count 4), and unlawfully resisted a peace officer (§ 148, subd. (a)(1); count 5). As to counts 1 through 3 it was alleged that J.C. committed those offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1).
Following a bench trial, the court made true findings as to counts 2 and 5. The court found counts 1 and 3, and the gang enhancement, had not been proven. Count 4 was dismissed on the People's motion after presentation of the People's case-in-chief.
On appeal, J.C. asserts (1) there was not sufficient evidence that he aided and abetted another individual in the assault on Jesse G, and (2) the court should have struck Jesse G.'s testimony because he was unavailable during the defense's case, thereby violating his right to due process and to confront witnesses. We affirm.

A Riverside County jury found Ryan Christopher Pagan guilty of the first degree murder (Pen. Code,[1] § 187, subd. (a)) of Gary Bolt as charged in count 1 of the second amended information, and of the willful, deliberate, and premeditated attempted murder of Raymond Hernandez (§§ 664 & 187, subd. (a)) as charged in count 2. The jury found true both a count 1 enhancement allegation that Pagan personally and intentionally discharged a firearm causing death during the commission of the murder within the meaning of subdivision (d) of section 12022.53, and a count 2 enhancement allegation that he personally and intentionally discharged a firearm during the commission of the attempted murder within the meaning of subdivision (c) of that section.
The jury found Pagan's codefendant, Paul David Martinez, guilty as an aider and abettor of both the second degree murder of Gary Bolt (§ 187, subd. (a); count 1) and the willful, deliberate, and premeditated attempted murder of Hernandez (§§ 664 & 187, subd. (a); count 2). The jury found not true enhancement allegations in counts 1 and 2 that Martinez personally used a firearm within the meaning of subdivision (b) of section 12022.53.

Respondents Michael Mossman and Jasmine Mossman filed a complaint alleging breach of contract, intentional misrepresentation, negligent misrepresentation, and concealment against appellants Juan C. Naranjo and Isabel Naranjo. A jury found in favor of the Mossmans on their intentional misrepresentation, negligent misrepresentation and concealment claims. Additionally, the jury found clear and convincing evidence the Naranjos acted with malice, oppression and fraud. On the remaining cause of action for breach of contract, the jury found in favor of the Naranjos. Both parties moved for attorney fees and the trial court denied both motions.
On appeal the Naranjos contend they were the prevailing party on the only contract claim in the action and were entitled to attorney fees as a matter of law. They further contend they are entitled to attorney fees without apportionment between fees incurred on the tort claims and fees incurred on the breach of contract cause of action.
We affirm. The standard real estate agreement which the parties signed permits the prevailing party in actions "arising out of" the agreement to recover reasonable attorney fees and costs. Both the Mossmans' breach of contract and tort claims arose out of the real estate agreement. Accordingly, in determining whether the Naranjos were prevailing parties entitled to recover their attorney fees, the trial court was required to consider the Mossmans' success on their tort claims. In light of that success, the Naranjos were not entitled to recover any attorney fees.

A.W. (mother), mother of minors Rudolph D., Kayla D., and L.D. (minors), appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code,[1] §§ 366.26, 395.) Mother contends the court erred in terminating her parental rights, thus freeing Kayla D. and L.D.[2] for adoption, because there was insufficient evidence that they were likely to be adopted in a reasonable time. Disagreeing, we shall affirm.

A jury convicted defendant Patrick James Farmer of criminal threats, recidivist corporal injury to a spouse, spousal rape, and felony false imprisonment. It deadlocked on a count of assault with a deadly weapon and an enhancement for personal use of a deadly weapon during the criminal threats, both of which the trial court dismissed in the interests of justice on the prosecutor’s motion. The court also sustained a recidivist allegation. The court sentenced defendant to state prison, awarding conduct credits limited to 15 percent of presentence custody. (Pen. Code, §§ 2933.1; 667.5, subd. (c)(3).)[1]

In the wee hours of an August morning in 2007, plaintiff Jennifer Albera (Albera) walked arm in arm with a friend between house parties. Plaintiff stubbed her toe on a concrete step attached to private property and adjacent to a public sidewalk maintained by defendant City of Sacramento (City). Albera filed suit against City, alleging a dangerous condition of public property. City filed a motion for summary judgment. The trial court granted the motion, finding Albera failed to present a triable issue of fact regarding City’s ownership or control of the step. Albera appeals, challenging the trial court’s finding. We shall affirm the judgment.

A jury convicted defendant Luis Pena Oseguera of first degree murder and found that he personally used a deadly weapon (a knife). The trial court sentenced him to an indeterminate term of 25 years to life in prison for the murder, plus one year for using a deadly weapon.
Defendant contends (1) there is insufficient evidence of premeditation to support the conviction for first degree murder; (2) the trial court provided an inadequate response to a jury question during deliberations; (3) the trial court erred in instructing the jury on flight because defendant did not flee; and (4) the prosecutor committed prejudicial misconduct during closing argument.
We conclude (1) although there is little, if any, evidence of planning, the evidence of motive and manner of killing is sufficient to support defendant’s conviction for first degree murder; (2) defendant forfeited his challenge to the trial court’s jury response because he affirmatively consented to the response, did not object or request clarifying language during trial, and an objection or request for clarification would not have been futile; (3) the trial court did not err in instructing on flight given the evidence that defendant immediately left the crime scene with his children and considered fleeing to Mexico; and (4) defendant forfeited his claim of prosecutorial misconduct during closing argument because he did not object or request a jury admonition and there is no indication such efforts would have been futile; in any event there was no misconduct because the prosecutor made a fair comment on the evidence.
We will affirm the judgment.

Defendant Jason Earl Visser entered negotiated guilty pleas to theft-related charges in three cases and was granted probation. Ultimately, however, he was sentenced on some charges to which he had not entered a plea, and not sentenced on other crimes to which he had entered a plea. We agree with the parties that these cases must be remanded to the trial court for pronouncement of sentence.

Immediately after his 21-year-old son, defendant William James Tasker, fired three shots in his bedroom, another shot at the base of the telephone, and smashed his arm through a window while holding a rifle, Lawrence Tasker told the responding police officer that defendant had pointed a gun at him and said, “‘I’m going to fucking kill you.’” At trial, he recanted his statement that defendant pointed the gun at him or threatened to kill him. The father’s credibility was the focus of the trial.
A jury convicted defendant of assault with a deadly weapon with the personal use of a firearm, discharging a firearm with gross negligence, malicious obstruction or severance of a telephone line with the personal use of a firearm, making a criminal threat with the personal use of a firearm, threatening a crime victim/witness, and misdemeanor carrying a loaded firearm in a prohibited place. On appeal, he alleges instructional error, prosecutorial misconduct, and sentencing error. The Attorney General concedes sentencing error. We accept the concession and, in all other respects, affirm the judgment.

Defendant Eddie Duane Stevey, convicted of various sex crimes against his 16-year-old victim, contends the interpretation of the mixed DNA samples and the methodology used to project the probability of a DNA match constitute “new scientific techniques” requiring an evidentiary hearing to demonstrate they are generally accepted in the scientific community. (People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly).) In fact, it has been over 20 years since the first California appellate court concluded that the use of DNA for forensic purposes was generally accepted within the scientific community, and there has been a steady stream of cases finding general acceptance of an ever-increasing number of kits and improved methodologies in collecting and analyzing DNA evidence. (E.g., People v. Axell (1991) 235 Cal.App.3d 836, 842 (Axell); People v. Hill (2001) 89 Cal.App.4th 48, 56 (Hill); People v. Jackson (2008) 163 Cal.App.4th 313, 325 (Jackson).)