CA Unpub Decisions

The Food and Drug Administration (FDA) approved the ANCURE ENDOGRAFT System (Ancure Device) for use by surgeons to treat abdominal aortic aneurysms. Plaintiffs Michael J. McGuan and Lillian Johnson, who suffered severe injuries after they were implanted with this device, brought products liability and personal injury actions against defendants Endovascular Technologies, Inc. (EVT), Guidant Corporation (Guidant), Advanced Cardiovascular Systems, Inc., and Origin Medsystems, Inc.[1] The trial court granted defendants motions for summary judgment on the ground that plaintiffs claims were preempted by federal law. The trial court also denied plaintiffs motions to amend their complaints, and granted defendants motions to seal portions of the record. Plaintiffs have filed timely appeals from the judgments of dismissal. For the reasons stated below, Court affirm.

In July 2009, defendant Isadore Alexander Piper filed a MOTION FOR THE COURT TO REMOVE AN ILLEGAL STRIKE. He asserted in this motion that his 1978 conviction for shooting into an occupied vehicle (Pen. Code, 246) had been illegally used to enhance his prison term for his 1994 conviction. In 1994, defendant had been sentenced to state prison for a term of 25 years to life after he was convicted of being a felon in possession of a firearm (Pen. Code, 12021, subd. (a)) and two strike allegations (Pen. Code, 667, subds. (b)-(i)) were found true. Neither of the strike allegations was based on defendants 1978 conviction. Three prison prior enhancement allegations (Pen. Code, 667.5, subd. (b)) were also found true, including one based on defendants 1978 conviction, but the trial court stayed the punishment for all three prison priors so they did not affect defendants sentence for his 1994 conviction. Defendants July 2009 motion was premised on his claim that his 1978 conviction should not have been used to enhance his 1994 sentence because the 1978 conviction was not for a serious felony. In August 2009, defendant filed an AMENDMENT to his motion, which did not change its substance. The superior court denied the motion. Defendant filed a timely notice of appeal. Appointed appellate counsel has filed an opening brief which states the case and the facts but raises no issues. Defendant was notified of his right to submit written argument on his own behalf, and he has submitted two supplemental letter briefs. None of his assertions in his supplemental briefs relates to the basis for his 2009 motion. Since defendants 1994 sentence was not impacted in any way by his 1978 conviction (and a prison prior enhancement may be applied for any felony, not just a serious felony), there was nothing illegal about his 1994 sentence. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal. The judgment is affirmed.

Defendant was convicted by a jury of assaulting a peace officer with an automatic weapon, resisting arrest, being a felon in possession of a firearm, and possession of methamphetamine. The jury was unable to reach a verdict on a charge of attempted murder of a police officer and that count was dismissed. Defendant appeals, arguing that the trial court erred in denying his motion for a new trial based on the testimony of an additional expert witness that would have bolstered the credibility of his expert who did opine that defendant was not the person who made incriminatory threats recorded by a bystander and played to the jury. Not only could the additional expert testimony have been obtained earlier in the exercise of reasonable diligence, but the recorded statements were relevant primarily to the attempted murder charge and not likely to produce a different result at a new trial on the charges for which defendant was convicted. Defendants remaining contentions, that the trial court erred in allowing the jury to hear the specifics of his prior convictions and in imposing sentence, also lack merit. Therefore court shall affirm.

In these consolidated appeals, defendants Edward Litke and the Edward Litke Revocable Trust of 1995 (Litke) appeal from a judgment and postjudgment order of the San Francisco Superior Court in a wrongful eviction action in favor of plaintiffs Jorge Chacon, Sr., Gilma Chacon and their adult children, Jorge Chacon, Jr., Amilcar Chacon, and Tania Chacon (Chacons).[1] Following a bench trial, the court awarded the Chacons damages and attorney fees under the San Francisco Rent Stabilization and Arbitration Ordinance (Ordinance), ruling that Litke violated the Ordinance when, after bringing a successful unlawful detainer action against the Chacons so that he might effect repairs under the Ordinance, San Francisco Administrative Code section 37.9, subdivision (a)(11), [2] Litke wrongfully recovered permanent possession by refusing to allow the Chacons to return to the apartment after the expiration of 90 days. Litke contends, among other things, that the court erred in rejecting his claims that: (1) the Ordinance allows a right of reoccupation only to those tenants who temporarily vacate after notice from the landlord and not to tenants who leave only after the landlord brings a successful unlawful detainer action against them; (2) Litke recovered permanent possession of the premises by a valid judgment in the unlawful detainer action against the Chacons and that judgment was res judicata and collateral estoppel as to the Chacons lawsuit; (3) a stipulation between the parties following the successful unlawful detainer action constituted a surrender of the lease by the Chacons, forfeiting any right to reoccupy the premises; (4) as a matter of law, Litkes alleged wrongful actions were absolutely privileged under the litigation privilege (Civ. Code, 47, subd. (b)); and (5) the court erred in granting judgment on the pleadings as to three of Litkes affirmative defenses. Litke also challenges the attorney fee award as excessive. Court shall affirm the judgment in its entirety.

Appellant Rama Diop appeals from a judgment entered following a contested hearing regarding custody of her and respondent Richard Owenss now four-year-old son. She contends the court erred in ordering the parents to share joint legal and physical custody of their son and in denying her request for permission to move with the boy to New York. Diop argues for the first time on appeal that the court applied an incorrect standard and also argues the court abused its discretion in finding that the proposed move would not be in the childs best interests. Court shall modify the judgment in one respect and otherwise affirm.

Michael Mead, Curtis Raff, and Romiro Sanchez (for convenience, the unit owners) were defendants in an action brought against them by their homeowners association. Following a five-day court trial, the unit owners prevailed, and thereafter sought attorney fees pursuant to Civil Code section 1354, subdivision (c). The trial court issued a detailed order awarding $238,426 in fees. The unit owners contend that the amount awarded was an abuse of discretion, that they are entitled to $62,056 more. Court disagree, and affirm.

Appellant Mario Saballos challenges a conviction for second degree robbery, contending the Redwood City Police Departments failure to preserve a videotape of the robbery warranted dismissal of the charge. In the alternative, appellant asserts the trial court erred in refusing to instruct jurors that they could find appellant not guilty if they determined the police acted in bad faith in allowing exculpatory evidence to be lost or destroyed. Court affirm the judgment.

Plaintiff Murray, Stok & Company (Murray) appeals from a judgment entered in favor of defendant Recall Secure Destruction Services, Inc. (Recall) on its complaint for restitution and injunctive relief under the unfair competition law (Bus. & Prof. Code,[1] 17200 et seq.) and the false advertising law ( 17500 et seq.). Murray contends that the trial court erred in concluding that Recalls addition of a security administration fee on its invoices was not a deceptive business practice. court shall affirm.

Plaintiff Steven Floyd Voss, acting in propria persona, appeals from an order filed on April 13, 2009, dismissing his first amended complaint after the court sustained defendants demurrers without leave to amend.Court He contends his lawsuit should be reinstated against defendants. Court affirm.

Defendant Simon Calvillo, Jr. was convicted of one count of assault with a deadly weapon and one count of participation in a criminal street gang after pleading no contest to those charges and admitting that he caused great bodily injury in the commission of the assault. He was sentenced to seven years and eight months of imprisonment. Defendants attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record. Defendant was informed of his right to file a supplemental brief, but has not done so. Court find no arguable issue and shall affirm.

Davar Jafari doing business as Glendora Tire & Brake Center appeals from the judgment entered after the court granted summary judgment in favor of defendants EMC Insurance Companies and Employers Mutual Casualty Company. Defendants provided insurance to Jafari under a commercial auto (garage keepers) policy (the Policy), which provided coverage for bodily injury caused by an accident and insured against loss and damages resulting from the operation of Jafaris business. The superior court granted summary judgment on the basis the Policy did not cover the type of claim asserted against the insured, i.e., a customer sued the insured for, among other things, assault and battery by the insureds business manager in an altercation on the insureds business premises. In a published opinion, this court concluded the trial court erred in finding the insurer had no duty to defend as facts extrinsic to the complaint indicating the business manager acted in self-defense raised the possibility of coverage under the Policy, reasoning acts committed in self-defense might be deemed an accident because of the unexpectedness of the third partys actions. The California Supreme Court granted defendants petition for review and subsequently transferred the matter back to this court with directions to vacate our decision and reconsider the cause in light of Delgado v. Interinsurance Exchange of Automobile Club of Southern California (2009) 47 Cal.4th 302. Court affirm.

Appellant Carol Holmes (Holmes) appeals from a jury verdict in favor of respondent Paul Moody Tsou (Tsou) in a medical malpractice action. The gravamen of Holmess complaint was that Tsou was negligent in performing a non-surgical procedure to treat her fractured wrist and in failing to offer her a surgical option as an alternative treatment. Holmes now raises two arguments on appeal. First, she contends that the trial court erred in refusing to give the jury three special instructions that she requested on the issue of informed consent. Second, she claims that the trial court erroneously excluded evidence of a letter from the Medical Board of California concerning its conclusions about the treatment provided by Tsou. For the reasons set forth below, Court conclude that there was no error in the trial courts instructional and evidentiary rulings, and accordingly, affirm.

Farrar Garnett appeals from the judgment entered following his conviction by a jury for murder and attempted murder with special findings by the jury Garnett had personally discharged a firearm causing death or great bodily injury and had committed the offenses to benefit a criminal street gang and by the court in a bifurcated proceeding he had suffered a prior serious or violent felony conviction. On appeal Garnett argues the trial court erred in failing to bifurcate the trial of the gang enhancement allegations from the trial of the substantive offenses and there was insufficient evidence to support the jurys true findings on the gang allegations. Court affirm.

Antonio Romero Cervantes (appellant) was convicted by a jury of first degree murder, attempted murder, and assault with a firearm with findings that he personally used a firearm in the commission of all three offenses. (Pen. Code, 187, subd. (a), 664/187, subd. (a), 245, subd. (a)(2), 12022.5, subd. (a).)[1] He was sentenced to 27 years to life and a consecutive determinate term of three years. He further was ordered by the court not to own, use, threaten to use, possess, buy, or sell any deadly or dangerous weapon. The trial court also imposed and stayed a parole revocation fine of $200. He appeals, contending that the court erred by: 1) refusing to strike the entire jury panel when it discovered misconduct by one juror; 2) imposing the prohibition of owning or possessing deadly or dangerous weapons; and 3) imposing the parole revocation fine. We find his first contention to be without merit, but agree with the remainder of his contentions. Court modify the judgment and affirm.