CA Unpub Decisions

In this dental malpractice action, a jury found defendant and respondent Dr. Stephen B. Mann had not committed malpractice in treating plaintiff and appellant Edward D. Smalley. On appeal, Smalley challenges the trial court’s in limine order excluding evidence of the Monterey Bay Dental Society and California Dental Association’s peer review decision regarding his treatment with Dr. Mann on a number of grounds.
We review the admissibility of the peer review decision under Evidence Code section 1157,[1] which limits the discovery of the records and proceedings of professional society peer review committees and the compelled testimony of persons who attend peer review committee meetings, and hold that the Monterey Bay Dental Society (MBDS) and the California Dental Association (CDA) were peer review societies within the meaning of section 1157. We also hold that the peer review decision in this case was inadmissible under section 1157 and that the trial court did not err when it ruled that Smalley’s experts could not testify regarding the peer review decision. We will therefore affirm the judgment.

HIT, Inc., appeals from a judgment in this professional malpractice action against Newmeyer & Dillion, LLP, and attorney Jon J. Janecek (hereafter collectively “Newmeyer”), and Cushman & Wakefield of California, Inc., and brokers, Marc D. Renard and Manfred W. Schaub (hereafter collectively “Cushman”). HIT wanted to purchase a lessee’s leasehold interest in commercial real property, but the lessor exercised its right of first refusal to buy out the lease on the terms HIT negotiated. HIT alleged the defendants, the attorneys and brokers who represented it in the transaction, failed to advise it the lease contained a right of first refusal. The trial court sustained the defendants’ demurrers without leave to amend concluding HIT failed to allege proximately caused damages. HIT contends it adequately alleged the defendants were the “but for” cause of damages because had it known of the right of first refusal, it would have negotiated a less attractive deal so the lessor would not have exercised its rights. We find no merit to its contention and affirm the judgment.

Steven Kissen (Kissen) appeals from the judgment and attorney fee order entered in favor of his former business partner Gordon Runyon (Runyon). Kissen’s complaint sought damages for breach of oral contract, contribution, equitable indemnity, and subrogation with respect to his repayment of a $500,000 promissory note that contained an attorney fee provision. Kissen, Runyon, Janet Kline, and Diana Jianas were the principal shareholders in the now bankrupt company, Bermuda Triangle Ventures, Inc. (BTV). Kissen settled his claims against Jianas, and dropped his claims against Kline and BTV due to their insolvency. Kissen, and the remaining shareholder, Runyon agreed to a bench trial that lasted eight hours. The court entered judgment in Runyon’s favor, and later awarded him costs and attorney fees. On appeal, Kissen only challenges the court’s verdict with respect to the contribution claim and the attorney fee award.

Kathleen Dickey and her husband, Charles R. Dickey,[1] appeal from a judgment in favor of the City of La Habra (the City), in this personal injury action. They alleged the crosswalk where Kathleen was struck by a car constituted a dangerous condition of public property. The jury returned a special verdict finding the crosswalk was not a dangerous condition. On appeal, the Dickeys contend: (1) the trial court erred by admitting evidence the accident was a “hit and run”; (2) testimony by a defense witness on redirect examination was inadmissible; and (3) the trial court erred by denying their new trial motion. We find no error and affirm the judgment.

Plaintiff Kristen Andros was employed by defendant The Mills Corporation (Mills) as a vice‑president of leasing when, in 2007, defendant Simon Property Group, Inc. (Simon), acquired Mills in a joint venture with Farallon Capital Management. Simon thereafter hired Andros as a vice‑president of leasing in its Mills division. When Simon faced financial difficulties in 2008, Andros was selected for layoff. Andros sued Mills and Simon[1] for, inter alia, breach of contract, based on allegations Andros was not paid certain commissions and severance. Following a bench trial, the trial court entered judgment in favor of defendants and granted their postjudgment motion for prevailing party attorney fees. Andros appealed from the judgment and the postjudgment order awarding attorney fees, and we have consolidated Andros’s appeals.

This appeal follows Marco Damian’s fourth trial for crimes arising from a deadly shooting spree he aided and abetted back in 1991. However, it is not so much what happened at Damian’s fourth trial as what happened at his third trial that provides the basis for his appeal. Due to a charging error in his third trial, Damian was convicted not only of second degree murder, but also two counts of aggravated assault he had previously been acquitted of. On appeal to this court, we found the error harmless because the trial court ultimately struck those two counts. But on federal review, the Ninth Circuit Court of Appeals determined the error warranted the reversal of Damian’s murder conviction. Damian was then retried and convicted for a fourth time of committing murder in the second degree. He contends his retrial was fundamentally unfair for a variety of reasons, but we disagree and affirm the judgment.

Judson Gillard Lee appeals from a judgment after a jury convicted him of two counts of committing a lewd and lascivious act upon a child under 14 years of age. Lee argues the following: (1) the trial court erroneously excluded evidence of the victim’s prior inconsistent statement; (2) insufficient evidence supports one of his convictions for committing a lewd and lascivious act upon a child under 14 years of age; (3) this court should review the victim’s school records to determine whether they contain any evidence that would impeach the victim’s credibility; (4) the court erroneously imposed overbroad probation conditions; and (5) the court erroneously ordered the payment of the court security fee and court facilities assessment as probation conditions. Lee’s fourth claim has some merit but otherwise his contentions are unpersuasive. We affirm the judgment as modified.

Michelle R. (mother) appeals from the exit order the juvenile court made when terminating jurisdiction over her daughter, T.R. Mother contends that the court prejudicially abused its discretion by (1) granting the father sole legal custody and her only supervised visitation, (2) allowing father to supervise telephone contact between mother and the minor, and (3) allowing father to be “around” alcohol drinkers with the minor. Finding no abuse of discretion, we affirm the order.

Petitioner seeks to be relieved of the requirement to register as a sex offender under Penal Code section 290 et seq.[1] We agree that the trial court erred in denying his petition for writ of mandate insofar as it found that there was no denial of equal protection in applying the mandatory registration requirement to him. Accordingly, we grant the petition for writ of mandate and direct the trial court to conduct a new hearing to determine whether the discretionary registration requirement should be applied to him.

Defendant and appellant Jeffrey Antonio Cano pled guilty to one count of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) The trial court granted probation for a period of three years, subject to certain terms and conditions. On appeal, defendant argues that the court abused its discretion when it imposed a gang registration condition, since there was no evidence that the offense was gang related. The People concede, and we agree.

On August 11, 2010, plaintiff and appellant Craig Baumbusch (Baumbusch) filed a petition for writ of mandamus against Victor Valley Community College District (District), and against Angela Valles, Dennis Henderson, Joe Range, Don Nelson and Chris Mollenkamp, as members of the District’s Board of Trustees; Christopher O’Hearn, as District President; Fusako Yokotobi, as District Vice-President Human Resources; Leonard Knight, as District Chief of Police; Noreen Jacquez (Jacquez), as District Employee; and Salena Gonzales (Gonzales), as District Employee (herein collectively referred to as Defendants), seeking to enjoin Jacquez and Gonzales from “unlawfully exercising the powers of a peace officer and unlawfully occupying the classified position of Campus Police Officer.” The District and Defendants demurred to the petition for writ of mandamus. The trial court sustained the demurrers without leave to amend, and on March 4, 2011, judgment of dismissal was entered. Baumbusch challenges the trial court’s ruling.

On December 14, 2010, plaintiff and appellant Lumbsden A. Sangster filed an amended complaint for malicious prosecution, emotional distress, general negligence, intentional tort, and premises liability against defendant and respondent San Bernardino County Sheriff Department. Sangster alleged police misconduct in responding to and investigating an incident on January 7, 2007. Defendant demurred on the grounds that Sangster failed to comply with the Government Tort Claims Act (Gov. Code,[1] § 810 et seq.). The trial court sustained the demurrer without leave to amend, and judgment of dismissal was entered.
On appeal, Sangster contends the trial court erred in ruling his claims were time barred. He also asserts that the court should have granted leave to file a second amended complaint rather than sustaining defendant’s demurrer without leave to amend. We conclude the face of Sangster’s amended complaint, along with the attached documents, establishes as matter of law that his complaint and underlying government claims were untimely. In addition, he has not established that he is able to amend his amended complaint successfully. We therefore affirm the judgment.

Defendant and appellant Donald Wayne Hass contends that he is entitled to 76 additional conduct credits under the January 25, 2010 amendment of Penal Code[1] section 4019 (Sen. Bill No. 3X 18 (2009-2010 3d Ex. Sess.), Stats. 2009, ch. 28, § 50),[2] and the September 28, 2010 amendment to section 2933 (Sen. Bill 76, Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010).[3] He also contends that equal protection requires that he receive the additional presentence custody credits. We affirm.

Defendants South Coast Emergency Vehicle Service, South Coast Fire Equipment, Inc., and Jeff Kahler (hereafter referred collectively to as South Coast) appeal from the trial court’s denial of their anti-SLAPP (strategic lawsuit against public participation) motion (Code Civ. Proc.,[1] § 425.16). Defendants contend that each of the causes of action in plaintiff Donald Putnam’s complaint arose in whole or in substantial part from protected statements, and Putnam has not shown the likelihood of prevailing on the merits of his claims. We agree with defendants’ contentions, and we reverse.