CA Unpub Decisions

Conservatee Randy H. appeals from a postjudgment order denying his petition for rehearing on his status as a conservatee under the Lanterman-Petris-Short Act (the LPS) (Welf. & Inst. Code, § 5000 et seq.).[1] Randy contends he demonstrated he was not gravely disabled as defined in the LPS and thus the court abused its discretion by failing to terminate the conservatorship. We find no error and affirm the order.

Appellant, Alfredo Ruvalcaba Lariz, seeks appellate review of the sealed portion of the search warrant affidavit and the transcript of the in camera hearing conducted as a result of filing motions to reveal the identity of a confidential informant, motion to suppress evidence obtained as a result of the warrant, and motions to traverse and quash the search warrant.

Plaintiffs Jeffrey Frieden and Lori Frieden, as trustees of The Jeffrey and Lori Frieden Family Trust (the Frieden Trust),[1] appeal from the judgment entered after the trial court sustained without leave to amend defendants' demurrer to the second amended complaint (the Complaint). The Complaint alleged defendants Steven E. High and Coldwell Banker Previews International (CB) (collectively, Defendants)[2] breached duties owed by real estate brokers and agents to third parties, and committed breach of warranty of advantage, fraud by intentional authority, negligent performance of a contract, interference with prospective economic misrepresentation, negligent misrepresentation, and fraud by concealment.

Defendants County of Orange, John Moorlach, and Jack Anderson (sometimes collectively referred to as County) appeal the trial court's orders denying their special motions to strike under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (all further statutory references are to the Code of Civil Procedure, unless otherwise noted).[1] The trial court denied the motions, finding plaintiff Jo Ann Galisky's claims arose from the County's termination of her employment rather than any petitioning or free speech activity protected by the anti-SLAPP statute. We agree and affirm the trial court's orders.

The court entered judgment in favor of plaintiffs and cross-defendants Akram Quadri and Fatma Boukhari, who are married to each other (individual plaintiffs), and NeoCell Corporation against defendants and cross-complainants Ahmad Alkayali (Alkayali) and Terri Alkayali, finding the individual plaintiffs owned all the shares in NeoCell and defendants owned none. The judgment also included a permanent injunction barring defendants from the NeoCell premises.
Defendants' appeal raises several issues. They claim the court erred by denying them a jury trial on the declaratory relief causes of action as to stock ownership, the statement of decision was insufficient, the judgment is not supported by substantial evidence, the injunction should not have issued, and plaintiffs are barred from recovering by unclean hands. Finding none of these arguments meritorious, we affirm.

Granite State Insurance Company (Granite State) insured Sam's Suit Gallery, Inc. (Sam's), a men's wear store. Following a burglary at the store, The Suit Gallery Five Star Men's Wear, Inc. (Five Star) made a $327,432.31 claim against the policy. Granite State rescinded the policy due to the insured's failure to disclose, in its insurance application, two prior burglaries at the store. Five Star filed suit against Granite State. The court sustained without leave to amend Granite State's demurrer with respect to the cause of action for breach of contract as asserted by Five Star in its capacity as a third party beneficiary of the policy. It also granted Granite State's motion for summary judgment, due to the material misrepresentation in the insurance application. Five Star appeals.
Five Star argues that the court erred in sustaining the demurrer and that Five Star should have been able to enforce the policy provisions and sue for breach of contract as a third party beneficiary of the policy. Five Star also contends that the court erred in granting summary judgment based on Granite State's right to rescind the policy. It asserts there was a triable issue of material fact as to whether the insurance application was completed by agents of Granite State, such that their failure to obtain a full loss history and disclose the prior burglaries should have been imputed to the insurer. In addition, Five Star maintains that Granite State's failure to comply with the policy provision requiring the insurer to act upon a claim within 30 days of receipt of a sworn statement of loss precludes it from rescinding the policy. Finally, Five Star maintains that public policy favors the denial of summary judgment.
Five Star failed to raise a triable issue of material fact precluding summary judgment. Given that the court properly granted summary judgment on the basis of Granite State's right to rescind the policy, we need not address Five Star's arguments with respect to the third party beneficiary issues and the demurrer. We affirm.

Plaintiff Martha J. Shelton appeals the court's grant of summary judgment in favor of defendant Lions Eye Institute for Transplant and Research, Inc. (Lions), on her negligence claims relating to the transplant of an infected cornea in her eye. Plaintiff contends (1) her filing of a third amended complaint rendered moot Lions' motion for summary judgment on her second amended complaint; (2) the court abused its discretion by denying her motion for a continuance of the summary judgment hearing pursuant to Code of Civil Procedure section 437c, subdivision (h) (section 437c(h))[1]; and (3) the court erred by granting Lions' summary judgment motion. We conclude (1) the third amended complaint did not expand or change the scope of issues presented by the second amended complaint, and, in any event, plaintiff waived the asserted mootness of Lions' summary judgment motion by failing to raise it below; (2) plaintiff failed to make an adequate showing under section 437c(h) and therefore the court properly denied her continuance motion; and (3) the court properly granted summary judgment to Lions because no triable issue of material fact exists as to whether Lions met the relevant standard of care. Accordingly, we affirm the judgment.

Defendant David Brennan appeals from a judgment in an action for breach of contract and quantum meruit brought by plaintiff Mark Mitchell. The trial court conducted a bench trial and awarded judgment in Mitchell's favor on the quantum meruit claim. Brennan contends on appeal the trial court lacked jurisdiction to adjudicate Mitchell's claim because the contract required binding arbitration. For the reasons expressed below, we conclude the trial court did not err in finding Brennan waived the right to arbitrate and therefore affirm the judgment.

Sergio Manuel Tanori appeals from a judgment after a jury convicted him of attempted murder, assault with a firearm, second degree robbery, street terrorism, and felon in possession of a firearm, and found true street terrorism and firearm enhancements. Tanori argues: (1) insufficient evidence supports his convictions for attempted murder and street terrorism; (2) the trial court erroneously instructed the jury on the â€

Sonia S. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to her son Luis H. (child).[1] She contends the court erred by not finding termination would be detrimental to the child. In mother's view, their parent/child relationship so benefited the child as to outweigh the benefit of adoption. On review, we disagree and affirm.

Eric H. (father) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to his son Luis H.[1] Father joins in an argument made by the child's mother in her appeal, In re Luis H. (case no. F060612). The mother argued the juvenile court erred by not finding termination would be detrimental to the child based on the parent-child relationship they shared. On review, we concluded the juvenile court did not abuse its discretion by rejecting the mother's argument. Because father in this appeal raises no independent claim of error, we conclude the court properly terminated his parental rights.

Pursuant to a plea agreement, appellant, Eleazar Galvan Valencia, pled no contest to two counts of committing a forcible lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (b)(1); counts 1, 2). The court imposed a prison sentence of 16 years and made various orders, including that appellant pay on counts 1 and 2, respectively, fines of $300 and $500 pursuant to Penal Code section 290.3 (section 290.3) and penalty assessments of $780 and $1,300. Those penalty assessments included, among other charges, assessments under Government Code section 76104.7 (section 76104.7) of $30 and $50 on counts 1 and 2, respectively.
On appeal, appellant contends, and the People concede, as follows: (1) the section 290.3 fines exceeded the amount allowed under the version of the statute in effect at the time of the commission of the underlying offenses, and therefore, those fines, and the penalty assessments computed on the basis of those fines, violated constitutional prohibitions against ex post facto laws; (2) appellant committed the instant offenses prior to the enactment of section 76104.7, and therefore, the imposition of assessments pursuant to that statute also violated constitutional prohibitions against ex post facto laws. We agree, and will modify the judgment accordingly.

On February 7, 2008, defendant and appellant Steven Christopher Perle pleaded no contest to one count of violation of Penal Code section 273.5, subdivision (a), based on his battery of a cohabitant. (All further section references are to this code.) At the sentencing hearing on March 21, 2008, the court suspended imposition of judgment and admitted appellant to formal probation. In addition, the court imposed a $200 restitution fine pursuant to section 1202.4 and a $200 probation revocation restitution fine pursuant to section 1202.44. (The latter fine did not become operative until probation was revoked, in accordance with the terms of section 1202.44.) The court also imposed a $20 court security fee pursuant to section 1465.8.
After appellant's second violation of probation, the court sentenced him to prison. At sentencing, appellant's custody credits were sufficient that he was immediately released on parole. In addition to imposing the prison sentence, the court stated: â€

Kern County detention officers beat James Moore to death after Moore became uncooperative while being booked at the Kern County Central Receiving Facility, a county jail. Defendant Daniel Thomas Lindini was one of the officers who used force against Moore. A jury found him guilty of involuntary manslaughter and assault under color of authority. The court imposed a two-year prison term for involuntary manslaughter and stayed the sentence for the assault.
In this appeal, Lindini argues that (1) the evidence presented at trial was insufficient to support the convictions; (2) he was denied due process of law on both counts because his assaultive acts as shown at the preliminary hearing were different from the acts shown at trial; (3) the court erred when it failed to tell the jury it must unanimously agree about which of several independently sufficient acts was the basis of its verdict on assault under color of authority; and (4) he is entitled to retroactive recalculation of presentence credits for good conduct and work time based on Penal Code section 4019 as amended effective January 25, 2010. We affirm the judgment.