CA Unpub Decisions

Netanel Druk appeals from judgments dismissing his complaint against attorney Mary Creutz, and the law firm of Creutz, Creutz & Derrendinger LLP (the Creutz defendants), attorney Charles A. Schultz and the law firm of Wasserman, Comden, Casselman & Esensten (the WCCE defendants), and Rachel Zilberstein, following an order granting three special motions to strike the complaint under Code of Civil Procedure section 425.16. Finding no reversible error, we affirm the judgments of dismissal.[1] We also award the Creutz defendants and Rachel Zilberstein attorney fees, the amount to be determined by the trial court. Druk also appeals from several discovery orders and from an order granting a motion for an undertaking in favor of attorney Lenny Janner and the law firm of Netzah & Jankielewicz (the Janner defendants). We conclude that this part of the appeal must be dismissed, as none of the orders are directly appealable.

A jury convicted defendant, Vergil Balagot, of firearm assault (Pen. Code,[1] § 245, subd. (a)(2)) and criminal threats (§ 422). The jury further found defendant personally used a firearm in the commission of the offenses. (§ 12022.5, subd. (a).) The trial court found defendant had sustained a prior serious felony conviction. (§ 667, subd. (a)(1).) Defendant was sentenced to 15 years in state prison. We modify the judgment and affirm.

In November 2005, McCausland bought a mobile home from appellant (now known as Community Manufactured Home Sales) which was also responsible for the installation of the home in the mobile home park.
McCausland's evidence was that from the outset the home had a number of problems, which she brought to appellant's attention. Attempts to remedy the problems were unsatisfactory, and on August 24, 2006, by letter, she asked to rescind the contract. The request was unsuccessful, and she filed this lawsuit against appellant and other defendants, seeking rescission and other damages.
McCausland moved to have the court try the equitable issue of rescission (as to appellant only) first, to the court. The court granted the motion.

On June 11, 2010, Saad filed a complaint against defendant “Long Beach Police Department/Municipalities.” The complaint, which was prepared without the assistance of counsel, stated in relevant part that in October 2008, the Long Beach Police Department (LBPD) had engaged in “‘police misconduct, excessive force, assault/battery, defamation of character, humiliation, tazing, and dragging the body of the plaintiff through the entire length of the convention center.’”
The City of Long Beach (City) demurred on the grounds that the complaint was uncertain, did not allege compliance with the government claims statute (Gov. Code, § 905 et seq. [claims statute]), and did not allege facts sufficient to state a cause of action.[1]
In sustaining the demurrer with leave to amend, the trial court stated that “the complaint lacks articulated legal theories” and “there is no allegation of compliance with the Tort Claims Act. Plaintiff needs to show that she did in fact file a claim with the City prior to instituting litigation.”[2]
On December 10, 2010, Saad filed an amended complaint that stated in relevant part that Saad was subjected to “Police Misconduct[,] excessive force[,] Defamation of character, Ass[au]lt/Battery” at the “Maria Shriver Women’s Conference 2008.” The amended complaint did not allege that Saad had filed a claim with the City in compliance with the claims statute.

Defendants, Todd Lee Lane and Amber Ann Hanson, appeal from multiple felony convictions. Mr. Lane appeals after he was convicted in count 1 of methamphetamine transportation. (Health & Saf. Code, § 11379, subd. (a).) In count 2, Mr. Lane was convicted of methamphetamine possession in violation of Health and Safety Code section 11377, subdivision (a). In addition, Mr. Lane was found to have served five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Mr. Lane was sentenced to nine years in prison. Ms. Hanson was convicted of methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)); receiving stolen property (Pen. Code, § 496, subd. (a)); and being an accessory. (Pen. Code, § 32.) Ms. Hanson was placed on probation. After argument, we asked the parties on two occasions to brief certain issues relating to sentencing. We affirm the judgments with minor sentencing modifications.

Appellant Mishianand Lava Mack challenges her convictions for obtaining aid by misrepresentation, grand theft, and perjury by false application for aid. She contends the prosecution failed to prove that the applicable statute of limitations had not run; in addition, in connection with her convictions for obtaining aid by misrepresentation and grand theft, she contends the prosecution proved no material misrepresentation. We reject these contentions and affirm.

A jury found Sandra Espinoza Spencer guilty of solicitation of murder (Pen. Code, § 653f, subd. (b)) and conspiring to commit murder (§ 182, subd. (a)(1)).[1] The jury also found Spencer's codefendants Gonzalo C. Meza, Jr., and Benny Figueroa guilty of conspiring to commit murder. Defendants received indeterminate prison terms of 25 years to life. Defendants contend the judgments are not supported by substantial evidence, the trial court erred in admitting evidence of uncharged crimes and misconduct and the prosecutor committed misconduct. We affirm.

After jury trial, appellant Chae Chang was convicted of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)),[1] making criminal threats (§ 422), possession of a firearm by a felon (§ 12021, subd. (a)(1)), corporal injury to a cohabitant (§ 288a, subd. (c)(2)) and sexual penetration by a foreign object (§ 289, subd. (a)(1)). The jury deadlocked on a charge of forcible oral copulation, and the trial court dismissed that charge.
The information also alleged that appellant had a prior serious felony conviction
(§ 667, subd. (a)(1)) and a prior "strike" conviction (§§ 667, subds. (b)-(i), 1170.2, subds. (a)-(d)). In a bifurcated proceeding, appellant admitted those allegations.

On appeal from the judgment, Port LA Distribution Center, L.P. and Port LA Distribution Center II, L.P. (collectively, Port LA) challenges: (1) the order granting summary adjudication on its complaint in favor of United National Insurance Company, Inc. (UNIC); (2) the order granting judgment on the pleadings; and (3) the order denying, as untimely, its motion for production of documents.
Port LA also appeals from these postjudgment orders: (1) the order granting UNIC’s motion to strike Port LA’s cost memorandum; and (2) the order denying Port LA’s motion to strike UNIC’s cost memorandum.
In its appeal from the judgment, UNIC challenges: (1) the order granting Port LA summary judgment on UNIC’s cross-complaint; (2) the order granting Port LA’s motion for summary adjudication on UNIC’s rescission defense to the complaint; (3) the order denying as moot UNIC’s motion for summary judgment on its cross-complaint; and (4) the order granting Port LA’s summary adjudication motion as to UNIC’s duty to defend under the subject insurance policy.
We have read and considered the supplemental briefing of the parties on three issues originally not raised or briefed but requested by the court. The first issue pertains to an apparent inconsistency in the judgment. The remaining issues concern the appropriate review procedure for review of the trial court’s discovery ruling and in what particulars, if any, Port LA sustained prejudice from the lack of a ruling on the merits of its discovery motion. We shall address these issues, post.
Based on our review of the record and applicable law, we affirm both the judgment and the postjudgment orders in their entirety.

Appellant pled no contest to one count of a six-count amended information and, pursuant to Penal Code section 1170.12, subdivision (c)(1), admitted a prior strike conviction.[1] The remaining counts of the information were dismissed. Appellant then moved the court, pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to dismiss the prior strike conviction. The court declined to do so pursuant to the discretion granted it by that decision. Appellant appeals from the resulting judgment, including the prison sentence imposed on her, and also contends that the abstract of judgment must be corrected, a point with which the Attorney General agrees. We affirm, except to remand to the trial court to correct the abstract of judgment

This is an appeal from an order committing Spencer Thompson to the custody of the Department of Mental Health (DMH) for an indeterminate term pursuant to a jury determination that Thompson is a sexually violent predator (SVP) under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (the SVPA).[1]
Thompson contends the commitment order must be reversed because (1) he was denied the effective assistance of counsel; (2) the trial court refused to give a pinpoint jury instruction addressing the requirement of volitional impairment; and (3) the current version of the SVPA violates the equal protection clause of the state and federal constitutions. We reject Thompson’s first two contentions. However, we will remand this case to the trial court for consideration of Thompson’s equal protection claim.

Defendant Jose de Jesus Perez Gonzalez was convicted of one count of attempted murder, two counts of burglary, and other crimes, in connection with two separate burglaries, one of which involved a brutal attack on defendant’s landlady. He argues that insufficient evidence supports his attempted murder conviction, and that the trial court erred when it ordered him to pay $50,000 in restitution to the victims of one of the burglaries. The Attorney General concedes that there is an insufficient evidentiary basis for the restitution award. We accept respondent’s concession as to the restitution order, and remand the matter for further proceedings. We otherwise affirm the judgment.

In this personal injury action arising from a collision between a tractor trailer truck and two passenger vehicles, Ramon Garcia and his wife, Kamach Ork, along with David Allen Johnson (collectively plaintiffs) sued Pablo Cornejo, the driver of the truck, and his employer, Keep on Trucking Co. (KOT) (collectively defendants). Plaintiffs alleged that Cornejo had driven negligently and that KOT was both vicariously liable for Cornejo’s negligent driving and directly liable for its own negligence in hiring and retaining him. Prior to trial, KOT stipulated that Cornejo was acting in the course and scope of his employment and offered to admit vicarious liability if Cornejo was found negligent. The jury returned a verdict awarding Johnson in excess of $3.5 million in damages; Garcia and Ork were each awarded $1,500 in damages.

Appellant Roberto Cordova was convicted of criminal threats and vandalism. He appeals the trial court’s judgment on three grounds. Appellant first contends the court erroneously and in violation of his constitutional rights excluded the testimony of his only proffered witness. He also argues the court abused its discretion by improperly admitting two recorded jail phone call conversations between appellant and the alleged victim of his crimes, Edith B. Finally, appellant argues his admission of a prior serious felony was insufficient to impose a greater sentence. We reject all three arguments and affirm the judgment.