CA Unpub Decisions

After the trial court sustained a demurrer without leave to amend, it dismissed a taxpayer action filed by appellants Pia Salk and others[1]against respondent Regents of the University of California (Regents). (See Code Civ. Proc.,[2] 526a.) Salk appeals, contending that the trial court erred when it concluded that the taxpayer action was preempted by federal law. (See 7 U.S.C. 2131-2159.) Court affirm the judgment.

Appellant Tyler James Dwyer was convicted, following a jury trial, of possession of marijuana for sale. On appeal, he contends the prosecutor committed prejudicial misconduct by vouching for a prosecution witness during closing argument. Court affirm.

Susan Ward appeals from an order of the Marin County Superior Court finding that she was incompetent to stand trial in a criminal proceeding and committing her to the state mental hospital with an order permitting the hospital to administer antipsychotic medication to her without her consent. She contends on appeal that the medication order is not supported by substantial evidence. Respondent has moved to dismiss the appeal as moot because appellant was subsequently rendered competent to stand trial in the criminal proceeding and pleaded guilty to elder abuse (Pen. Code, 368, subd. (b)(1), a felony),[1]and to making unlawful 911 calls ( 653x, subd. (a)), a misdemeanor). The trial court placed appellant on probation, following her completion of the STAR court program. Court agree with respondent that the matter is moot and so shall dismiss the appeal.

Appellant Olusegun K. Phillips-Alonge, appearing in propria persona, appeals from the superior courts judgment denying his petition for writ of mandate, and asks this court to grant him writ relief. Court deny his request for writ relief, and affirm the judgment.

B.G. appeals from an order declaring him a ward of the juvenile court and committing him to placement in a court-approved home or institution. His counsel raises no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was apprised of his right to file a supplemental brief but did not do so.
The order is affirmed.

Defendant Cesario Angelo Jacobo, Jr., appeals a judgment entered upon his plea of no contest to inflicting corporal injury on his spouse. (Pen. Code,[1] 273.5, subd. (a).) His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been apprised of his right to file a supplemental brief, but he has not done so. The $400 fee imposed pursuant to section 1203.097 is ordered stricken. The trial court is directed to prepare an amended abstract of judgment reflecting this change and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respect, the judgment is affirmed.

Petitioner Lavender Galvao (Galvao) petitions for review of an order by the Workers Compensation Appeals Board (Board). The Board modified a decision by a Workers Compensation Judge (WCJ) awarding Galvao vocational rehabilitation maintenance allowance (VRMA) benefits under Labor Code[1] section 139.5 in connection with a work-related injury she sustained while employed by respondent Kinkos in 2002. The Board modified the WCJs award to provide that respondent Zurich American Insurance Company (Zurich), the insurer for Kinkos, is entitled to a credit against the VRMA benefits for wages Galvao earned working for a different employer after her injury. Galvao contends that the Boards order is erroneous in light of the decisions in Gamble v. Workers Comp. Appeals Bd. (2006) 143 Cal.App.4th 71 (Gamble), and Medrano v. Workers Comp. Appeals Bd. (2008) 167 Cal.App.4th 56 (Medrano), in which the courts held that no wage credit may be applied against VRMA benefits. Zurich responds that the Board correctly found that Gamble is distinguishable based on its facts. Zurich asserts that Medrano, which was issued after the Board made its decision in this case, was incorrectly decided.
Court adopt the conclusion of the Gamble and Medrano courts that VRMA is not a wage replacement benefit and that therefore employers are not entitled to credit against VRMA benefits for wages earned by the employee. Accordingly, we conclude that the Board should not have allowed a wage credit against Galvaos VRMA benefits.

Appellant Lee DiMartino brought an action against multiple defendants, including the two respondents in this appeal, arising from a collision between a vehicle operated by appellant and three other cars. The vehicle operated by appellant had been rented by respondent Cheryl Ostrander Burr (hereafter Cheryl) and had been taken by defendant James Burr (not a party to this appeal) allegedly without Cheryls permission. Cheryl and respondent Patricia Ostrander (hereafter Patricia) moved for summary judgment. Court affirm the trial courts order granting summary judgment as to both respondents.

In the underlying action, the trial court granted nonsuit on appellant John Sandovals claim for violation of due process against respondent Los Angeles County Department of Public Social Services (DPSS). Following a jury verdict in favor of DPSS on Sandovals remaining claims against DPSS for civil rights violations and wrongful termination, the trial court entered judgment for DPSS and denied Sandovals motion for a new trial. Court affirm.

The law firm of Quinn Emanuel Urquhart Oliver & Hedges, LLP and three of its attorneys, Harold A. Barza, David W. Quinto and Kristen Bird (respondents), moved to dismiss, under section 425.16 of the Code of Civil Procedure, an action brought by Joseph Cesaro and Sunday Funnies, LLC (appellants) against respondents. The trial court granted the motion and dismissed appellants action. Court affirm.

Plaintiff Tin Fu Cheung appeals from the granting of summary judgments in favor of defendants Dr. Timothy Ker and Alhambra Hospital Medical Center (AHMC). Cheung sued Ker and AHMC for medical negligence and battery, alleging that defendants removed his right colon unnecessarily and without his informed consent. The trial court concluded that Ker provided undisputed expert evidence that he did not cause or contribute to plaintiffs injuries, and that Cheung failed to establish the existence of a triable issue of material fact regarding causation. We conclude that Ker did not adequately refute the causation element for purposes of summary judgment, and further that triable issues of material fact exist regarding whether Ker breached his duty of care, such that summary judgment should not have been granted. Court therefore reverse the judgment in favor of Ker.

In the underlying action, E.O.C. Ord, Inc. (Ord), and the Law Offices of David McNeil Morse (Morse) asserted that John Makoff and Joel McIntyre fraudulently induced them to enter into contracts for legal services with the Unique Investment Corporation (Unique). Makoff and McIntyre demurred to the complaint, and filed a motion under Code of Civil Procedure section 425.16, the law designed to curtail the filing of strategic lawsuits against public participation, often called the anti SLAPP law. The trial court sustained Makoff and McIntyres demurrer to the complaint without leave to amend and denied the anti-SLAPP motion. Ord and Morse have appealed from the ruling on the demurrer, and Makoff and McIntyre have cross appealed from the denial of the anti SLAPP motion. We reverse the ruling on the demurrer, and affirm the denial of the anti SLAPP motion.

This case arose from a zoning dispute -- whether a distance of 500 feet prescribed in a local zoning ordinance means 500 feet measured along a line which may be walked between two points, or 500 feet measured along a straight line between two points, without regard to any intervening structures. The trial court interpreted 500 feet to mean 500 feet measured along a straight line, applied this interpretation to a set of undisputed facts, and found that a so-called adult cabaret was operating within less than 500 feet from the nearest residential lot in violation of the Los Angeles Municipal Code. The court entered a final judgment which enjoined the cabaret from continuing its operations, and imposed joint and several liability for statutory penalties against the cabarets corporate owner and the corporations chief executive officer. Appellant does not attack the trial courts interpretation of how the 500 feet is measured. Instead, he argues the trial court failed to consider his constitutional challenges to the ordinance, and that the statutory penalties improperly imposed for a number of reasons.
Court affirm the judgment.

Defendants, Luis Alberto Romero and Hector Manuel Romero,[1]appeal from their convictions for first degree murder (Pen. Code,[2] 187, subd. (a)) and Luiss conviction for firearm possession by a felon. ( 12021, subd. (a)(1).) They also appeal from the jurors findings that Luis personally used a firearm in the commission of the murder ( 12022.53, subds. (b), (c), (d), and (e)(1)) and the crimes were committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1)(C)). They raise multiple contentions. Court affirm with modifications.