CA Unpub Decisions

After a year and a half of litigation, after the trial date had already been rescheduled, and with the new trial date looming, the trial court denied plaintiff's ex parte request to amend the complaint by identifying the true name of a fictitiously named defendant. Although there is no question the plaintiff and his attorney should have discovered the identity of the defendant much earlier, we must reverse. It was not established that the plaintiff knew the defendant's identity before filing suit, and it was not established that any prejudice would result from delay if the amendment were allowed. The denial was therefore in error.

Appellants are a law firm and the law firm's attorneys who loaned $230,000 to a relative who served as trustee of a family trust. The loan was secured by real property in the trust estate. The trustee was replaced by respondents as successor cotrustees. Before being replaced, the former trustee sold the real property. Respondents filed an ex parte application for a temporary restraining order to prevent the distribution of the proceeds of sale. Appellants opposed the application on behalf of themselves and the former trustee. The trial court declined to issue a restraining order and a portion of the proceeds from sale of the trust property was distributed to appellants in repayment of the loan.
The successor trustees filed a lawsuit against the attorneys seeking to recover proceeds of sale distributed to the attorneys, alleging among other things, breach of trust. The attorneys filed a special motion to strike the complaint as a strategic lawsuit against public participation (SLAPP) suit under Code of Civil Procedure section 425.16.[1] Appellants contend that the successor trustee's lawsuit arose from protected litigation activity--their representation of themselves and the former trustee in the proceeding to enjoin distribution of proceeds from the sale of trust assets. Like the trial court, we conclude that, at most, the court appearance was incidental to the successor trustees' lawsuit. The allegations of the complaint turn on appellants' involvement with the former trustee in the management of her mother's trust and the use of trust assets for the former trustee's personal benefit.

A jury convicted appellant Darryl Winston of assault upon a peace officer or firefighter (Pen. Code, § 245, subd. (c))[1] (count 1); resisting an executive officer (§ 69) (count 2); misdemeanor resisting, delaying, or obstructing an officer (§ 148)[2] (counts 3, 4); and battery (§ 243, subd. (c)(4)) (count 5).

Two appeals are before this court. The first appeal is brought by Audrey M., who challenges the juvenile court's denial of a continuance before it terminated her parental rights to her daughter Z. (Welf. & Inst. Code, § 352.)[1] The second appeal is brought by Gloria M., Z.'s maternal grandmother, who challenges the court's summary denial of her petition for a modification. (§ 388.) We find no abuse of discretion in either of the juvenile court's rulings and affirm.

Following the purchase of 18 vacant lots of real estate, the buyer sued the seller, contending that the seller should have disclosed an alleged property line dispute along the southern boundary of the property. Following a bench trial, the trial court denied the plaintiff buyer's claim for rescission and other causes of action.
In this appeal, our review is limited due to the plaintiff's failure to properly request and obtain a statement of decision. Since substantial evidence supports denial of the rescission claim, we affirm the judgment.

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.

A jury convicted defendant Odis Hendrix of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and in a bifurcated proceeding the trial court found true an allegation that defendant had suffered a prior strike under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant admitted five prior prison terms (Pen. Code, § 667.5, subd. (b)), and was sentenced to six years in state prison (double the upper term, with the prior prison terms stricken). He appeals from the judgment of conviction. We affirm.

Christian Garcia and Ranferi Estrada appeal the judgments entered after a jury convicted them of discharging a firearm from a vehicle (Pen. Code,[1] § 12034, subd. (c)). The jury also found that Garcia personally used a firearm (§ 12022.5, subd. (a)), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Garcia was sentenced to 15 years in state prison, and Estrada received a 13-year sentence. Appellants contend (1) the evidence is insufficient to support their convictions; (2) there was insufficient evidence to support the gang enhancement; (3) the prosecution committed Brady[2] error; and (4) the trial court abused its discretion in failing to dismiss a juror for misconduct. They also allege cumulative error. We affirm.

On the eve of closing a deal with a major investor, a disgruntled manager employed by respondent KD Learning, Inc. (KDL)--appellant Sherry Gunther--telephoned the investor and disparaged KDL's management practices. As a result of Gunther's call, the investor backed out of the deal. KDL sued Gunther for interfering with a prospective economic advantage and breach of fiduciary duty. Gunther moved to strike the pleading as a Strategic Lawsuit Against Public Participation (SLAPP). (Code Civ. Proc., § 425.16.)[1] We affirm the trial court's denial of Gunther's motion. Gunther was not exercising her right to free speech â€

Appellants Paulette Jackson and Alice Johnson appeal from summary judgment granted against them in their lawsuit against the Los Angeles Unified School District (District) for racial discrimination in violation of Government Code section 12940. We affirm the judgments as to both appellants.

Petitioner Julie D., the mother of 15-month-old J.D.-M., seeks extraordinary writ review of a juvenile court order entered at the conclusion of a contested six-month review hearing on family reunification.[1] (Cal. Rules of Court, rules 8.400(2), 8.452.) The court terminated mother's reunification services and set the matter for a hearing on October 26, 2011, pursuant to Welfare and Institutions Code section 366.26[2] to determine the child's permanent placement. Mother contends that the trial court erred in finding that the San Francisco County Human Services Agency (agency) provided her with reasonable reunification services. She also claims the trial court abused its discretion when it refused to order additional services for her. We disagree, and deny the requested relief.

Defendant Jessica Ma in propria persona appeals from a judgment after a court trial awarding plaintiffs Ann C. Shinn et al. damages for investment losses. She contends that the judgment is not supported by substantial evidence, but her argument fails because she has not included the reporter's transcript of the trial in the record on appeal. Consequently, we affirm the judgment.

Plaintiff Gwendolyn Carmen (Carmen) appeals from a summary judgment entered in favor of her former employer, the San Francisco Unified School District (District). Carmen sued the District for allegedly failing to accommodate her disability under the California Fair Employment and Housing Act (FEHA).[1] We affirm the judgment on the ground there is no triable issue that the District failed to provide reasonable accommodation. Rather, the District consistently accommodated Carmen's claimed disability and is therefore entitled to judgment as a matter of law.

William Henry Brown (appellant) appeals the sentence imposed following his conviction by jury trial of rape (Pen. Code, § 261, subd. (a)(2))[1] of Jane Doe 1 (count 1); two counts of forcible oral copulation in concert (§ 288a, subd. (d)) of Jane Doe 2 (counts 2 and 5); forcible rape of Jane Doe 2 (count 3); forcible rape in concert (§ 264.1) of Jane Doe 2 (count 4); false imprisonment by violence (§ 236/237, subd. (a)) of Jane Doe 2 (count 6); forcible rape of Jane Doe 3 (count 7); and false imprisonment by violence of Jane Doe 3 (count 8). The jury found true the multiple victim enhancement allegation. (§ 667.61, subds. (b) & (e).) In a bifurcated proceeding the court found true appellant's prior rape in concert conviction, which brought the case within the one strike law (§ 667.61) and the habitual sexual offender law (§§ 667.6, subd. (a), 667.71). Appellant was sentenced to 84-years-to-life in state prison. His sole contention on appeal is that the court erred in failing to stay the sentences on the count 6 and 8 false imprisonment convictions pursuant to section 654. We agree and remand for resentencing.