CA Unpub Decisions

Plaintiff and appellant Halette Stevens (Halette)[1]appeals from a trial court order sustaining the demurrer of defendant and respondent Charles Stevens (Charles) without leave to amend and dismissing Halettes claims brought pursuant to the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, 15600 et seq.). The issue presented is whether an interested person (Welf. & Inst. Code, 15600, subd. (j)) may commence or maintain an elder abuse claim on behalf of a living elder for whom a conservator has already been appointed. According to Halette, she is an interested person (Welf. & Inst. Code, 15600, subd. (j)) who may commence or maintain an elder abuse claim on behalf of her mother, Helene Stevens (Helene), while her mother is alive, even though a conservator had been appointed for Helene. According to Charles, only the conservator could bring such an action; Halette, as an interested person, could not file an elder abuse claim until after Helene passed away. (Welf. & Inst. Code, 15657.3, subd. (d)(2).) Accordingly, the appeal is dismissed.

Andres Gutierrez Hernandez appeals from the judgment entered after a jury convicted him of simple assault, a lesser included offense of assault with a deadly weapon, and battery causing serious bodily injury and found true he personally inflicted great bodily injury in committing the battery. Hernandez contends the trial court erred by failing to dismiss his conviction of simple assault as a lesser included offense of the aggravated battery. Court agree, but in light of other errors committed by the trial court we remand for resentencing.

Appellant Sergius Orloff appeals from the judgment entered following his plea of guilty to one felony count of making criminal threats and one misdemeanor count of making annoying telephone calls. (Pen. Code, 422, 653m, subd. (a).) The trial court suspended imposition of sentence and placed him on probation with terms and conditions requiring him, among other things, to serve 180 days in the county jail. Orloff contends the jail term imposed as a condition of his probation constitutes cruel and unusual punishment under our state and federal constitutions. Court affirm.

A doctor provides grossly negligent care which causes the authorities to investigate his malpractice. Also, he is fired. Prior to being interviewed by an investigator, the doctor is advised by a lawyer with a conflict of interest. The lawyer tells the doctor to tell the truth. But the doctor, due to the shame of having been terminated and other factors, lies to the investigator. To the investigator, the doctor admits he did it. Disciplinary proceedings are instituted and the doctor retains a different lawyer. During the administrative hearing the doctor now testifies he did not do it. His license is revoked (in part because he told two different stories). Can the doctor now sue the first lawyer (who advised the client to tell the truth) for damages flowing from the license revocation because of the conflict of interest? The common sense answer is, Of course not. The simple truth is a person (who is advised to tell the truth but is found to have made false statements under oath) cannot recover legal malpractice and emotional distress damages because he lied. The foregoing, which is dependent on the application of collateral estoppel principles, describes much, but not all, of this litigation and we have thus far provided the short answer to the issue. Court turn now to the long answer.

Appellant Jonathan Darnell Jones was convicted, following a jury trial, of one count of felony stalking in violation of Penal Code[1] section 646.9, subdivision (a), one count of misdemeanor battery in violation of section 243, subdivision (e)(1), one count of assault with a firearm in violation of section 245, subdivision (a)(2) and one count of dissuading a witness from reporting a crime in violation of section 136.1, subdivision (b)(1). Appellant admitted that he had served four prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a total of three years in state prison. Appellant appeals from the judgment of conviction, contending that the trial court erred in instructing the jury on circumstantial evidence and admitting evidence of appellant's gang membership. We affirm the judgment of conviction.

Michael Anthony Padilla appeals from the judgment entered following a jury trial in which he was convicted in count 1 of making criminal threats (Pen. Code, 422), in count 2 of inflicting corporal injury to a spouse/cohabitant/childs parent (Pen. Code, 273.5, subd. (a)), and his admission that he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subd. (b)-(i)) and a prior conviction of a serious felony within the meaning of Penal Code section 667, subdivision (a)(1). He was sentenced to prison for a total of 12 years and four months, consisting of in count 2, the middle term of three years, doubled by reason of his prior strike conviction, and in count 1, one-third the middle term of two years, which is eight months, doubled, plus five years by reason of the prior serious conviction enhancement.
The evidence at trial established that Lorena Garcia was living with appellant at their apartment in Cudahy, California. On July 27, 2008, appellant was drunk and beat her up. Appellant called her a slut and a tramp and placed both his hands around her throat and lifted her off the ground. Appellant said he had a gun on him and threatened to kill her in front of her daughter. Appellant went to his bedroom and passed out. Garcia feared for her life but did not report the incident to the police, fearing appellant would kill her.

Defendant Rodolfo Violantes purports to appeal from an order granting deferred entry of judgment following his plea of guilty to possession of cocaine. Court conclude that no appeal lies and therefore dismiss.

Appellant Robert Obeid filed his action against respondents James Eleopoulos and Big E Investments, LLC on November 7, 2006. The complaint was captioned as an action for partition but, following a plenary trial, the trial court found that the action was for the breach of an oral partnership agreement, the partnership having terminated sometime in August 2002. The court concluded that the action was barred by the statute of limitations. Court agree and therefore affirm the judgment.

Plaintiff Ronnie Reyes appeals a judgment after the trial court sustained a demurrer without leave to amend his complaint against respondents, the State of California (State), the California Highway Patrol (CHP), and California Highway Patrol Officer, David Kajiwara (Kajiwara). Appellant contends that the court erred by concluding that nine causes of action were untimely, that the complaint did not state an ultrahazardous activity cause of action, and by denying him an opportunity to file an amended complaint. Court affirm.

This appeal arises from a breach of contract action brought by respondent Chris Kantrowitz (Kantrowitz) against his former employer, appellant ODVD LLC (ODVD). Kantrowitz alleged that ODVD breached an oral contract to pay him a bonus of $100,000 in exchange for Kantrowitz continuing his employment with the company through the completion of certain work. Following a trial, the jury found in favor of Kantrowitz. ODVD now appeals, asserting that the trial court erred in denying its motion for summary judgment and in denying its subsequent motions for nonsuit and directed verdict. ODVD argues that each motion should have been granted because the evidence established that the terms of the alleged oral contract were not sufficiently definite to be enforceable and that the parties did not mutually assent to any binding agreement. Court conclude that there was no error in the trial courts denial of ODVDs motions, and accordingly, affirm.

Officers responding to a burglar alarm encountered defendant Willie Mayes alone inside a gift shop, wearing black gloves and carrying a cash register. Defendant had a backpack and book bag over his shoulder, inside of which were numerous burglary tools. According to the gift shop owner, two boxes of merchandise were missing as well as $50 taken from the cash register. The front door of the shop showed signs of being pried open. Following his arrest, defendant was charged by information with one count of commercial burglary (Pen, Code, 459) and one count of possession of burglary tools (Pen. Code, 466). The information further alleged as to the burglary count that defendant had suffered 11 separate convictions for felonies (Pen. Code, 667.5, subd. (b)). Defendant appeared in propria persona at his arraignment, pleaded not guilty to the charges and denied the prior prison term allegations. The trial court found he knowingly and voluntarily waived his Sixth Amendment right to counsel under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562]. Defendant continued to represent himself throughout the proceedings. The judgment is affirmed.

Sustainable Transportation Advocates of Santa Barbara appeals from a judgment denying its petition for a writ of mandate. Appellant sought to vacate the approval of Measure A by the Santa Barbara County Association of Governments (respondent). Measure A, entitled the "Santa Barbara County Road Repair, Traffic Relief, and Transportation Safety Measure," imposes a retail sales and use tax to fund transportation projects in Santa Barbara County. Respondent approved Measure A without conducting environmental review pursuant to the California Environmental Quality Act (CEQA). After respondent's approval, Measure A was adopted by the voters at the general election on November 4, 2008. Appellant contends that Measure A is invalid because there was no environmental review before respondent approved it. Court disagree and affirm.

Defendant Roderick K. Rohrberg was charged with driving under the influence of alcohol (Veh. Code, 23152, subd. (a)) (count 1) and with driving while having a blood alcohol level of .08 percent or higher (count 2). The information further alleged as to each count that Rohrberg had suffered two prior convictions within the meaning of Vehicle Code sections 23550 and 23550.5 for driving under the influence and one prior conviction for reckless driving. He was represented by counsel throughout the proceedings. After the denial of his motion to suppress evidence (Pen. Code, 1538.5), Rohrberg entered a negotiated plea of no contest to count 2 and admitted the truth of the three prior conviction allegations. Pursuant to the plea agreement, Rohrberg was sentenced to the lower term of 16 months in state prison. The court ordered Rohrberg to pay a $20 security fee, a $50 alcohol abuse fine and a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to Penal Code section 1202.45. Count 1 was dismissed. Rohrberg was awarded 62 days of presentence credit (42 actual days and 20 days of conduct credit).

Michael G. (father) appeals orders of the juvenile court entered with respect to his four children. He contends the jurisdictional findings are not supported by substantial evidence and, based thereon, the disposition order must be set aside. Court reject fathers contentions and affirm the orders.