CA Unpub Decisions

Plaintiff Tracey Johnson, the owner of a hair salon, was cutting a customer's hair using a pair of scissors manufactured by defendant The Cricket Company (Cricket) when she suffered injuries allegedly caused by the defective design and manufacture of the scissors, and the deceptive manner in which it was sold. She filed a complaint for damages in which she alleged seven causes of action, three for differing theories of product liability, and four for various alleged misrepresentations. The entire complaint for damages fell before Cricket's summary judgment motion. We conclude that summary adjudication was properly granted as to those causes of action alleged by Johnson concerning alleged misrepresentations made by Cricket preceding Johnson's purchase of the scissors, but was improperly granted as to her three products liability causes of action. Court thus affirm in part and reverse in part.

Plaintiff Michele Fotinos appeals from an order granting defendant Dr. Renee LaFarge's special motion to strike plaintiff's complaint pursuant to the anti SLAPP (strategic litigation against public participation) statute, Code of Civil Procedure section 425.16. Court affirm.

A jury convicted defendant of possessing methamphetamine for sale (Health & Saf. Code, § 11378); possessing cocaine for sale (Health & Saf. Code, § 11351) while armed with a firearm (Pen. Code, § 12022, subd. (c)); and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)). The court sentenced defendant to an aggregate six-year prison sentence.
Defendant argues on appeal that (1) CALCRIM No. 3131, the standard jury instruction on being armed with a firearm in the commission of a crime, is inadequate; (2) trial counsel was ineffective in failing to request modification of CALCRIM No. 3131 (3) the trial court failed to adequately respond to the jury's request for clarification of the difference between the arming enhancement and the charge for being a felon in possession of a firearm; (4) there was insufficient evidence that defendant was armed with a firearm; and (5) defendant is entitled to additional conduct credit. We find no error concerning the matters asserted by defendant and affirm the judgment, with modification only to award additional conduct credit under a recent statutory amendment that changed the formula for awarding credit during the time relevant here. (Pen. Code, § 4019.)

Defendant appeals from the 16-month state prison sentence imposed following his no contest pleas and admissions in Santa Clara Superior Court case number CC955307. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case and the facts, but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. He has not done so.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we have reviewed the entire record, and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, Court affirm.

Appellants Simpson Thacher & Bartlett, a law firm, and George M. Newcombe, a Simpson Thacher & Bartlett partner (collectively, Simpson Thacher) represented PrediWave Corporation (PrediWave) in a lawsuit filed in Los Angeles County Superior Court (the Los Angeles action) against respondent Jimmy Li (Li). In the Los Angeles action, PrediWave alleged that Li was liable for breach of fiduciary duty and other wrongdoing in his capacity as an outside director of PrediWave. After the Los Angeles action was voluntarily dismissed, Li brought the instant malicious prosecution action against Simpson Thacher in Santa Clara County Superior Court.
Simpson Thacher responded to Li's malicious prosecution action by filing a special motion to strike the complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16,[1] which provides that a cause of action arising from constitutionally protecting speech or petitioning activity is subject to a special motion to strike unless the plaintiff establishes a probability of prevailing on the claim. (§425.16, subd. (b)(1).) The trial court denied the motion, finding that Li had shown that he had a probability of prevailing on his malicious prosecution claim because Simpson Thacher lacked probable cause for initiating and maintaining the Los Angeles action. Specifically, the trial court found that Li's evidence was sufficient to show that Li had acted in furtherance of his fiduciary duty and his conduct was protected by the business judgment rule (Corp. Code, § 309) and the litigation privilege (Civ. Code, § 47, subd. (b).)

Defendant Ronald Durham was convicted after jury trial of grand theft of personal property of a value exceeding $400. (Pen. Code, §§ 484, 487, subd. (a).)[1] The jury also found true an allegation that defendant took property of a value exceeding $65,000 within the meaning of section 12022.6, subdivision (a)(1). The court suspended imposition of sentence and placed defendant on probation for five years with various terms and conditions, including a one-year county jail sentence suspended until April 2, 2010. The court also ordered defendant to pay victim restitution in the amount of $132,463.85.
On appeal, defendant contends that (1) the trial court violated his constitutional rights by instructing the jury with CALJIC No. 14.46; (2) trial counsel rendered ineffective assistance by failing to request a pinpoint instruction; (3) the trial court committed reversible error by failing to give CALJIC No. 2.71; and (4) the trial court violated his constitutional rights by failing to give a unanimity instruction with respect to the enhancement allegation. As we find no reversible error, Court affirm the judgment.

Defendant Marck Brian-Menece Vasquez was convicted after court trial of lewd conduct upon a child (Pen. Code, § 288, subd. (a))[1] and misdemeanor exhibiting harmful matter to a minor (§ 313.1, subd. (a)). The court sentenced defendant to six years in prison and imposed a $1,140 fine pursuant to section 290.3. In his opening brief on appeal, defendant contends that there is insufficient evidence to support the section 313.1 conviction and that the court erred in imposing the $1,140 fine. In his reply brief, defendant concedes that the $1,140 fine was correctly calculated. As court disagree with defendant's remaining contention. Court will affirm the judgment.

In 2009, the United States Internal Revenue Service (IRS) informed plaintiff Overhill Farms, Inc. (Overhill) that 231 of its then-current employees had provided invalid social security numbers. Overhill was advised its use of invalid tax identification information exposed it to the imposition of penalties and criminal liability. Overhill contacted the employees identified by the IRS, advised them that their social security numbers were invalid according to the IRS, and provided them the opportunity to correct the erroneous information to avoid the termination of their employment with Overhill. One of the identified employees provided Overhill information showing that the employee's invalid social security number was an error. The remainder of the identified employees either admitted they had submitted an invalid social security number and were not authorized to work in the United States, or ignored Overhill's requests for information; their employment with Overhill was thereafter terminated.

The marriage of John Joseph Mumm and Hanh My Phan ended with a judgment of dissolution entered on May 8, 2001. Phan appeals from an order, entered on June 16, 2009, which, in effect, offsets amounts Mumm owed her as arrearages by amounts she owed him and finding, as a consequence, Mumm owed no arrearages to Phan. The order is appealable as a postjudgment order that affects the judgment in some way or relates to its enforcement and involves issues other than those decided by the judgment. (Code Civ. Proc., § 904.1, subd. (a)(2); In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 497.) We affirm.
Mumm has not filed a respondent's brief and, therefore, we decide the appeal on the record, the appellant's opening brief, and oral argument of appellant. (Cal. Rules of Court, rule 8.220(a)(2).) On our own motion, we augment the record with the original superior court file in Mumm v. Phan (Super. Ct. Orange County, No. 99D008774). (See Cal. Rules of Court, rule 8.128.)

Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452 (rule)) from the juvenile court's order setting a Welfare and Institutions Code section 366.26 hearing as to his son A. Court conclude his petition fails to comport with the procedural requirements of rule 8.452. Accordingly, Court will dismiss the petition as facially inadequate.

On December 3, 2009, appellant, Michael Ian Conway, waived his constitutional rights and pled no contest to receiving stolen property (Pen. Code, § 496, subd. (a), count two).[1] In return for appellant's change of plea, a second degree burglary allegation (§ 211) was dismissed, and appellant faced the upper term sentence of three years.
On January 7, 2010, the trial court sentenced appellant to the upper prison term of three years. Appellant received custody credits of 159 days. Appellant contends he is entitled to extra custody credits under the recently amended provisions of section 4019. Court disagree and will affirm the judgment.

Appellant was convicted of possession of marijuana for sale (Health & Saf. Code, § 11359), two counts of being a felon in possession of a firearm (Pen. Code, § 12022, subd. (a)(1)), and possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1).) He was sentenced to three years on the possession for sale conviction, plus an additional year on an arming enhancement (Pen. Code, § 12022, subd. (a)(1)), and eight months on each of the other three counts. Appellant received an additional two years for committing the Penal Code section 12316, subdivision (b)(1) offense while out on bail (Pen. Code, § 12022.1) and an additional year for having served a prior prison term (Pen. Code, § 667.5, subd. (b)), resulting in a total prison term of nine years. Appellant was sentenced on January 5, 2010. He received a total of 1,090 days of presentence credit under Penal Code section 4019, consisting of 728 days of actual time served plus 362 days of conduct credits. Twenty days after appellant was sentenced, an amendment to Penal Code section 4019 took effect and increased presentence credits in certain cases. (Stats. 2009-2010, 3d Ex. Sess., ch. 28 (S.B. 18), §50, eff. Jan. 25, 2010.)

The defendants in this case are challenging the trial court's denial of their special motions to strike pursuant to California's anti-SLAPP statute. Court will affirm the order denying the anti-SLAPP motions.

In a previous appeal from the judgment of conviction in the instant case, we reversed the jury's true findings on gang enhancement allegations attached to two counts, for lack of substantial evidence, and struck the imposition of sentence on four prior prison terms, for which no finding was rendered. (People v. Ochoa (2009) 179 Cal.App.4th 650 (maj. opn.).) The trial court originally imposed a determinate sentence of 10 years followed by an indeterminate term of life with a minimum parole eligibility date of 15 years. On remand, another judge imposed a determinate, aggregate prison sentence of 19 years 8 months.
In this appeal, defendant Guillermo Ochoa contends the sentencing court abused its discretion by imposing the upper term on one count upon which the prior court had imposed the midterm, and by imposing consecutive terms on another count upon which the prior court had imposed a concurrent term. Defendant additionally argues that the abstract of judgment must be amended to delete all references to the gang and prior prison term enhancements. The People concede the latter issue. We shall direct the trial court to make the requested corrections to the abstract of judgment. In all other respects, the judgment is affirmed.