CA Unpub Decisions

Francesca B., mother of B.B. and Ian B. (hereinafter Mother), appeals from the juvenile court's jurisdiction and disposition order. Mother argues that substantial evidence did not support the court's sustaining of jurisdiction over B. under Welfare and Institutions Code section 300,[1] subdivision (b), and over Ian, under subdivision (j). We reverse in part.

Following a jury trial, defendant Justin Mathew Wittkop was convicted of several crimes, all arising from a single, after school event, including attempted first degree murder (Pen. Code, §§ 664/187),[1] two counts of assault with a firearm (§ 245, subd. (a)(2)), single counts of malicious discharge of a firearm from a vehicle (§ 12034, subd. (c)) and shooting at an inhabited dwelling (§ 246), with enhancements for personally inflicting great bodily injury (§ 12022.7, subd. (a)), inflicting great bodily injury as a result of discharging a firearm from a vehicle (§ 12022.55), personal use of firearms (§ 12022.5, subd. (a)), and personal discharge of a handgun (§ 12022.53, subds. (b)-(d)). The trial court sentenced defendant to 32 years to life in state prison.[2]

Jose Garcia appeals from the judgment dismissing his tort suit after the trial court sustained defendants' demurrer without leave to amend. The court agreed with defendants that all of the claims alleged in Garcia's second amended complaint are barred by the so-called firefighter's rule. Finding no error, we affirm.

Plaintiffs Ronald and Debbie Shaffer (the Shaffers) appeal from an order denying them attorney fees. The Shaffers obtained a jury verdict of $1,413 in damages in their action for negligence and other torts arising from their contract for purchase of a residence from defendants Steven and Julie Sassoon. The trial court awarded costs to the Sassoons because the Shaffers' recovery at trial was less than the Sassoons' $23,000 Code of Civil Procedure section 998 offer.[1] In a prior appeal (Shaffer I),[2] we concluded that the Shaffers achieved a more favorable result than the Sassoons' section 998 offer of $23,000 by including the Shaffers' preoffer attorney fees in the calculation of whether they had achieved a more favorable result. We remanded for a determination of the Shaffers' costs. On remand, the trial court refused to award the Shaffers attorney fees because it concluded our opinion in Shaffer I held that the Shaffers had failed to comply with a contractual prerequisite for such an award of fees.
We reverse, finding that Shaffer I did not address the Shaffers' compliance with the contractual prerequisite, and therefore the trial court erred in refusing to award them costs as the prevailing party.

Defendant Damien Jermell Gatewood appeals from the judgment entered following a jury trial in which he was convicted of two counts of assault with a semiautomatic firearm, with gang and personal gun-use findings. Defendant contends that a juror engaged in misconduct by concealing information during voir dire, the trial court erred in addressing such misconduct, and insufficient evidence supports the gang enhancement findings. We agree with respect to juror misconduct and an inadequate response by the trial court and thus reverse.

Plaintiff Bahram Reza Tabatabai (plaintiff) appeals from the dismissal of his complaint against defendants Emerald Escrow (Emerald) and Reid Breitman (Breitman) following defendants' successful demurrers. We determine that Emerald's demurrer was well-taken, and so affirm Emerald's judgment of dismissal. Because we conclude that the complaint states a cause of action against Breitman, however, we reverse the judgment as to him.

Cross-complainants James P. Foley and Lou Ann Foley (Foley) appeal from a judgment entered after the trial court sustained the demurrer of cross-defendant and respondent County of Los Angeles (County). Plaintiffs and cross-defendants Patrick A. Farrow and Kinley A. Farrow (Farrow) are not parties to this appeal. Foley contends that the trial court erred in sustaining County's demurrer on the basis that Foley had not filed a timely petition for a writ of mandate as required under Code of Civil Procedure section 1094.5 (undesignated statutory references are to the Code of Civil Procedure) after County issued a second official inspection report (second report) requiring Foley to correct violations of the Los Angeles County Fire Code. We address only the narrow issue of whether County established from the cross-complaint and the record that the second report was a final administrative decision within the meaning of section 1094.5. We conclude that County failed to do so, and therefore the judgment is reversed.

Appellant Patricia Rosenthal contends the trial court erred in dismissing her cross-complaint after she failed to appear for trial. During the course of the litigation, Rosenthal had requested numerous continuances of trial based on her ill health and destitute financial circumstances, and in May 2009, the trial court issued an order to show cause to dismiss (OSC) if Rosenthal failed to appear at the continued trial date of November 30, 2009. Rosenthal contends her â€

Ponciano Pomares appeals from a judgment and sentence following his no contest plea. His court-appointed counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 to determine whether there are any arguable issues on appeal. We find no such issues and affirm.

Jane Feng and Zhen Zhou appeal contending the trial court erred when it enforced a settlement agreement that they signed. We conclude appellants have forfeited the right to argue the court erred and will affirm.

A jury convicted defendant Robert Loren Woods of second degree murder for the killing of his estranged wife. At trial, defendant admitted the killing but maintained he acted in the heat of passion and was guilty of voluntary manslaughter only. On appeal, defendant contends the trial court prejudicially abused its discretion and denied him a fair trial by (1) precluding his trial counsel from asking prospective jurors whether they would have difficulty following the court's instructions regarding his heat of passion defense, and (2) permitting a defense witness to be impeached with a 20-year-old theft conviction. We find no prejudicial error, and affirm the judgment.

A jury convicted appellant Joseph James Melcher as charged of three counts of murder (counts 1-3); two counts of first degree attempted murder (counts 4 & 5); discharge of a firearm at an occupied vehicle (count 6); two counts of assault with a semiautomatic firearm (counts 7 & 8); and reckless driving while evading a peace officer (count 9). In connection with the murder counts, the jury found true the allegations of multiple-murder special circumstance as well as personal discharge of a firearm causing great bodily injury and death, but rejected a special circumstance allegation that the victims were intentionally killed because of race, color, religion, nationality or country of origin, as well as the hate crime murder sentencing factor. With counts four through six, the jury sustained personal discharge of a firearm causing great bodily injury allegations, but rejected the hate crime enhancements. And finally, counts seven and eight were accompanied by sustained allegations of personal and intentional discharge of firearm allegations, but again the hate crime enhancements were not found true. The trial court sentenced appellant to 200 years to life in state prison plus life without the possibility of parole.

Plaintiffs Sylester Flowers, Helen Flowers, Flowers Heritage Foundation, Alta Tierra Properties, LLC, The Apothecary Eastmont Town Center, Inc., and Ramsell Corporation (collectively, plaintiffs) sued Ranni Hillyer for, among other things, fraud and conversion.[1] Plaintiffs alleged Hillyer made 72 unauthorized transactions and embezzled millions of dollars while she was the chief financial officer (CFO) of Ramsell Corporation (Ramsell). Hillyer cross-complained for defamation, and for sexual harassment and retaliation in violation of the California Fair Employment Housing Act (FEHA) (Gov. Code, § 12900 et seq.).
The trial court directed verdicts in plaintiffs' favor on 40 of the 72 transactions totaling $3,641,141.97. The jury returned a verdict for plaintiffs on all but three of the remaining transactions and awarded plaintiffs $5,546,625.23 in compensatory damages, $721,500 in noneconomic damages, and $4,825,143 in punitive damages. The jury also returned a defense verdict on Hillyer's sexual harassment claim. The court entered judgment for plaintiffs in the amount of $11,708,181,69 and denied Hillyer's posttrial motions. The court also awarded Syl and Ramsell $1,312,632 in attorney fees.

This is the second time this case has come to us on the denial of a petition for writ of coram nobis based on alleged ineffective assistance of counsel for failure to advise of adverse immigration consequences prior to a guilty plea. In the first case, filed pursuant to People v. Wende (1979) 25 Cal.3d 436, finding no arguable issues we affirmed the court's order denying the petition of defendant Raul Cabrera Ortega on the grounds it was untimely and defendant had not made a prima facie case showing his guilty plea was defective. (People v. Ortega (Apr. 20, 2010, G042792) [nonpub. opn.], p. 4.) We incorporate the facts and procedural history set out in that opinion. (Id. at pp. 2-3.) Relying on People v. Kim (2009) 45 Cal.4th 1078, 1104, we stated that a writ of coram nobis is not the proper proceeding for a claim of ineffective assistance of counsel. (People v. Ortega, supra, G042792, pp. 4-5.)