CA Unpub Decisions

Sotha Hok pled guilty to one felony count of burglary. The trial court sentenced him to four years in state prison, suspended the sentence, and placed Hok on formal probation. Five months later, the trial court found Hok had violated his probation. Hok failed to turn himself in as ordered, and two years later was arrested on an outstanding bench warrant. The trial court imposed the previously suspended four-year sentence. Hok appeals. Court dismiss Hoks challenge to the guilty plea because Hok did not file a timely appeal or obtain a certificate of probable cause.

Pedro Ayala, Jr. was convicted, following a jury trial, of attempted robbery. On appeal he contends (1) the prosecutor committed prejudicial misconduct during his cross-examination of appellant; (2) the prosecutor committed prejudicial misconduct during his closing argument; and (3) the failure by defense counsel to object to any of the alleged prosecutorial misconduct violated appellants constitutional right to effective assistance of counsel. Court agree that the prosecutor committed misconduct in this case. However, because we also conclude that appellant was not prejudiced by the misconduct, Court shall affirm the judgment.

Intra-American Foundation & Drilling Co., Inc. (IAFD) initiated this proceeding after it was removed as a subcontractor on a construction project to replace the Salinas River Bridge. An arbitrator rejected IAFDs claims that it was wrongfully removed from the project and awarded attorneys fees to the project owner, the California Department of Transportation (Caltrans), the general contractor, R.M. Harris Company, Inc. (Harris), and Harris sureties, United States Fidelity & Guaranty Company and St. Paul Fire and Marine Insurance Company (jointly, the Sureties). The superior court granted petitions to affirm the arbitration award and entered judgment against IAFD.On appeal, IAFD contends the judgment must be reversed because the arbitrator exceeded his authority and his decision is not supported by substantial evidence. IAFD also contends that respondents are not entitled to attorneys fees. Court reject most of these contentions but will modify the judgment to strike the fee award to Caltrans because Court find no authority to support it.

Appellant was declared a ward of the court after he and other family members stole liquor from a supermarket. When a security guard from the store attempted to stop the theft, appellants cousin pointed a gun at the guard, and the group left in a waiting car. While the juvenile court found the evidence insufficient to support the allegation of burglary, it concluded that appellant had committed robbery. Appellant contends the evidence was also insufficient to support a finding that he committed robbery and that the juvenile court abused its discretion in imposing a gang condition. Although we modify the gang condition, Court otherwise affirm.

The minor involved in this juvenile dependency case was born prematurely to a mother with substance abuse and mental health problems, and spent her first year of life in the hospital before being released to a foster home. After receiving reunification services for about 20 months, the mother had established a strong reciprocal bond with the minor, but still had not made sufficient progress in complying with her case plan to warrant allowing her to have unsupervised visitation, much less custody. Accordingly, the juvenile court entered an order terminating her parental rights so that the minor could be adopted by her foster parents, subject to a mediated agreement permitting the mother to maintain monthly visits with the minor.
On appeal, the mother contends that the trial court erred in failing to apply the beneficial relationship exception to the statute providing for termination of parental rights. court reject this contention, and affirm the trial courts order.

Adam Brand and his wife, Eliza Brand, (collectively plaintiffs or Brands) wanted to buy a new home for their family and enlisted the services of Arlene Revilla (Revilla), a licensed realtor employed by broker RE/MAX Beach Cities & Westside Properties (RE/MAX). In August 2003, plaintiffs were shown property located at 4335 Sawtelle Boulevard in Culver City (the Property) and decided they wanted to purchase it. Amy Bray (Bray) owned the Property, and her listing and selling agent was broker George Chung Realty, Inc., doing business as George Chung Realtors (Chung) and its employee, Fred Rabie (Rabie), a licensed realtor. The purchase price was $430,000.
Court affirm.

Allen Hammler was convicted of two counts of forcible rape (Pen. Code,[1] 261, subd. (a)(2)), two counts of oral copulation ( 288a, subd. (c)(2)), and two counts of false imprisonment by violence ( 236). On appeal, he contends that the trial court committed reversible error when inquiring into a reported jury deadlock and ordering further deliberations; that the convictions should be overturned because a support person was permitted to testify after accompanying a victim to the witness stand; that the trial court erred and violated his right to due process when uncharged acts of sexual misconduct were received in evidence; that the court gave constitutionally defective jury instructions; and that the trial court made several sentencing errors. Court remand for resentencing.

Appellant Christine Carmichael sued respondent Lloyd Ownbey for legal malpractice. (The complaint brought a number of actions, including fraud and breach of contract, but in each instance, the theory was legal malpractice.) Judgment was entered in Ownbey's favor after his motion for summary judgment was granted and Carmichael's motions for reconsideration and motion under Code of Civil Procedure section 473 were denied. Court affirm.

Plaintiff Badrudin Kurwa, M.D. ("Dr. Kurwa") brought a shareholder's derivative lawsuit on behalf of Trans Valley Eye Associates, Inc. ("Trans Valley") against Physician Associates of the Greater San Gabriel Valley, a medical corporation ("Physician Associates") alleging breach of a contract to which the latter two corporations were parties. Dr. Kurwa also sued attorney Dale Goldfarb and his law firm, Harrington, Foxx, Dubrow & Canter, LLP (together, "Harrington Foxx"), for tortious interference with contractual relations in connection with the termination of that same contract. Physician Associates and Harrington Foxx each moved for summary judgment, which the trial court granted based upon its finding that the contract underlying both causes of action was void. Dr. Kurwa appeals the judgments entered against him. Finding no error, Court affirm.

Appellant Vijay Pal (Pal) brought an action in negligence against Respondent Nordstrom, Inc. (Nordstrom). In her operative complaint, Pal alleged that Nordstrom failed to exercise reasonable care to protect certain jewelry owned by Pal which she inadvertently left in a dressing room. On appeal, Pal argues that the trial court erred in sustaining Nordstroms demurrer to the complaint without leave to amend. Court conclude that Pal has failed to state a cause of action for negligence or premises liability against Nordstrom because Nordstrom did not owe Pal a legal duty of care. Court also conclude that there is no reasonable possibility that Pal can cure the defects in her complaint against Nordstrom by further amendment. Accordingly, Court affirm.

Appellant Derrick Foster was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code[1]section 187, subdivision (a) and one count of assault with a deadly weapon in violation of section 245, subdivision (a)(1). The jury found true the allegations that appellant personally used a knife during the commission of the murder within the meaning of section 12022, subdivision (b)(1) and personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court sentenced appellant to a term of five years plus a 25 year to life term in state prison. Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support his murder conviction, and further contending that the trial court erred in admitting evidence of knives and the prosecutor committed misconduct. Court affirm the judgment of conviction.

Upon resigning from her employment with Jiffy Lube International, Inc. (Jiffy Lube), Respondent Dorothy Lazo (Lazo) complained to the company that she had been sexually harassed by her former supervisor, Appellant Oscar Aragon (Aragon). Following an internal investigation of Lazos complaint, Jiffy Lube concluded that Lazo and Aragon had engaged in a consensual romantic relationship, but terminated Aragons employment for, in part, his failure to report the relationship to the company. Aragon thereafter filed a civil action against Lazo for defamation, intentional interference with prospective economic advantage, and negligent interference with prospective economic advantage. In response to Aragons complaint, Lazo brought a special motion to strike pursuant to Code of Civil Procedure section 425.16.[1] The trial court granted the motion as to the causes of action for intentional and negligence interference with prospective economic advantage on the grounds that Aragons complaint arose from acts in furtherance of Lazos constitutional right of petition and that Aragon failed to prove a probability of prevailing on these claims. Aragon now appeals the trial courts order partially granting the special motion to strike. For the reasons set forth below, Court affirm.

Following a shooting incident outside a high school gymnasium, a jury convicted Miguel A. Miranda of three counts of assault with a firearm, with a finding as to each count that he personally used a firearm. Miranda admitted a prior strike. The judgment is affirmed.

Angelina Olivares appeals from judgment entered following a jury trial in which she was convicted of voluntary manslaughter (Pen. Code, 192, subd. (a)) with the finding that she personally used a deadly and dangerous weapon, a claw hammer, within the meaning of Penal Code section 12022, subdivision (b)(1). She was sentenced to prison for 12 years, consisting of the upper term of 11 years plus one year for the weapons enhancement. She contends the upper term sentence imposed violated her rights pursuant to the Sixth Amendment because it was not based on facts found by a jury beyond a reasonable doubt or admitted by appellant. For reasons stated in the opinion Court affirm the judgment.