CA Unpub Decisions

This appeal arises from the trial court's resolution of cross-motions for summary judgment or adjudication regarding the interpretation of a first party commercial property insurance policy issued by Fidelity & Guaranty Insurance Company (Fidelity) to Greco & Traficante (Greco). Plaintiff and appellant Greco, a law firm, sued defendant and respondent Fidelity for breach of contract, breach of the duty of good faith and fair dealing, and declaratory relief after Fidelity denied Greco's claim for recovery of a $57,000 loss sustained when billing data became unavailable. The trial court granted Fidelity's motion for summary judgment and denied Greco's cross-motion for summary adjudication. (Code Civ. Proc., 437c). Court conclude the trial court properly granted Fidelity's motion for summary judgment. Greco failed to carry its burden of showing its claim comes within the scope of Fidelity's policy, which insured against risks of direct physical loss. Greco's claim was not based on physical loss of covered property. Its remaining causes of action also lack merit. Accordingly, Court affirm the judgment.

A jury convicted Stephen J. Langosh of resisting a peace officer in the discharge of his or her duties (Pen. Code,[1] 148, subd. (a)(1)), a misdemeanor, and acquitted him of carrying a concealed firearm ( 12025, subd. (a)(2)) and brandishing a firearm ( 417, subd. (a)(2)). The jury was unable to reach a verdict on a count of assault with a deadly weapon, and a mistrial was declared on that count. Langosh subsequently entered a negotiated guilty plea to assault with force likely to cause great bodily injury ( 245, subd. (a)(1)). Under the plea bargain, the prosecution agreed to dismiss an allegation that Langosh personally used a deadly weapon; as a result of this dismissal, the assault count would not be considered a serious/violent prior conviction or strike in the future. The plea bargain also called for Langosh to waive (1) his right to later seek reduction of the assault count to a misdemeanor (see 17, subd. (b)), and (2) his appeal rights to the resisting an officer conviction.Langosh personally filed a notice of appeal stating he was appealing from the jury trial. Langosh did not obtain a certificate of probable cause.

Sheila L. and Charles L. (together, the parents) appeal a judgment declaring their minor son, Spencer L., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing him from their custody. The parents challenge the sufficiency of the evidence to support the court's jurisdictional and dispositional findings. Court affirm the judgment.

Sheila L. and Charles L. (together, the parents) appeal a judgment declaring their minor son, Spencer L., a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing him from their custody. The parents challenge the sufficiency of the evidence to support the court's jurisdictional and dispositional findings. Court affirm the judgment.

This case involves a written contract for the purchase and sale of certain real property in Palm Springs. Plaintiff Steven Davis alleged that defendants agreed to sell the property to him, and that defendants breached the agreement by, among other ways, failing to deliver title to the property. Following a court trial, the court found that Davis was not entitled to damages because he had not proved that he was a ready, willing, and able buyer. Defendants moved for an award of their attorney fees pursuant to the contract, which the court denied. Davis appealed from the judgment against him, and defendants appealed from the courts denial of their motion for attorney fees. Davis contends that the court erred by: (1) failing to issue a statement of decision addressing which of the three defendants was liable on the contract; (2) finding that Davis was not ready, willing, and able to purchase the property; and (3) finding that Davis had not proven damages. Because Court find that Davis has failed to show that the court erred in finding that he was not ready, willing, and able to purchase the property, Court may summarily reject his remaining arguments and affirm the judgment.

A juvenile court found true the allegation that defendant H.W. (minor) committed the offense of criminal threats. (Pen. Code, 422.) Minor had been previously declared a ward of the court and placed on probation, so the court ordered that he remain a ward on probation, in the custody of his parents. On appeal, minor contends that five of his probation conditions must be stricken because the juvenile court did not verbally impose them at the disposition hearing. Court affirm.

Defendant and appellant Gonzalo Cruz was retried after his conviction for murder (Pen. Code, 187, subd. (a)) was reversed. On retrial, a jury found him guilty of the lesser offense of second degree murder. It also found true the allegation that defendant personally used a deadly and dangerous weapon (a knife), within the meaning of Penal Code sections 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23). A trial court sentenced defendant to 16 years to life, and ordered the sentence to be served consecutive to a 26 year to life term previously imposed on another murder conviction. On appeal, defendant argues that his conviction should be reversed because the court improperly admitted a hearsay statement made by his daughter regarding the whereabouts of the victim. Furthermore, the court failed to properly instruct the jury as to the treatment of the alleged adoptive admission. Court affirm.

Defendant pled guilty to transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) (count 1) and possession of methamphetamine for sale (Health & Saf. Code, 11378) (count 2). He also admitted that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). In return, defendant was given an indicated sentenced of two years on count 1, a concurrent term of two years on count 2, and the dismissal of the prior prison term enhancement pursuant to Penal Code section 1385. Defendant was sentenced in accordance with the indicated sentence. The court also found that a motor vehicle was used in the commission of the crimes pursuant to Vehicle Code section 13202, subdivision (a), and ordered the Department of Motor Vehicles (DMV) to suspend or revoke defendants driving privileges. On appeal, defendant contends (1) the trial court exceeded the terms of its indicated sentence when it ordered the DMV to suspend or revoke his driving privileges, and (2) specific performance is warranted. Court reject these contentions and affirm the judgment.

Defendant Aubrey Colie Johnson appeals from his conviction of possessing cocaine base for sale (Health & Saf. Code, 11351.5) and resisting an executive officer (Pen. Code, 69). Defendant contends (1) the trial court failed to adequately investigate a claim that a juror overheard the prosecutor talking to a police officer witness, and (2) Health and Safety Code section 11351.5 violates constitutional equal protection principles because it imposes a higher punishment for possession for sale of cocaine base than for possession for sale of powdered cocaine. We conclude that defendants claims of error were forfeited by his failure to raise timely objections in the trial court, and, moreover, the claims of error are meritless. Court therefore affirm.

A jury found defendant guilty of possessing marijuana for sale (Health & Saf. Code, 11359) (count 1) and transporting more than 28.5 grams of marijuana (Health & Saf. Code, 11360, subd. (a)) (count 2). After defendant waived his right to a jury trial on the prior strike conviction allegation, in a bifurcated proceeding, the court found true that defendant had sustained a prior strike conviction within the meaning of Penal Code sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1). Defendant was sentenced to a total term of four years in state prison as follows: the low term of two years on count 2, doubled to four years due to the prior strike conviction; his sentence on count 1 was stayed pursuant to Penal Code section 654. Defendants sole contention on appeal is that use of a prior juvenile adjudication as a strike under the three strikes law denied him due process and the right to trial by jury. Court reject this contention and affirm the judgment.

A juvenile wardship petition was filed alleging that defendant A.R. (minor) committed the offense of public intoxication.[1] (Pen. Code, 647, subd. (f).) A juvenile court found the allegation to be true. The court declared minor a ward and placed her on probation in her parents home. The court also ordered that minors drivers license or the privilege to obtain her drivers license be delayed/suspended for one year. (Veh. Code, 13202.5, subd. (d)(3).) On appeal, minors sole contention is there was insufficient evidence to support the courts true finding that she was intoxicated in public, since she was not in a public place of her own volition. Court affirm.

Pursuant to a plea agreement, defendant Fredrick Eugene Frogue pled nolo contendere to cultivation of marijuana. (Health & Saf. Code, 11358.) In exchange, other charges and enhancements were dismissed, and defendant was placed on probation for two years. After holding a restitution hearing and determining that electricity had been taken, without payment, from Southern California Edison (SCE) for use in the cultivation of the marijuana, the court ordered defendant to be jointly and severally liable with his two codefendants to pay victim restitution in the amount of $71,883.06. On appeal, defendant contends the court abused its discretion in ordering him to pay restitution to SCE, since he was not convicted of theft of the electricity. Court affirm.

Defendant and appellant Jorge Avila Ayala appeals from an order denying a motion to vacate the judgment and withdraw his guilty plea. (Pen. Code, 1016.5.)He claims he was not properly advised that he would be deported for his admission to a violation of Health and Safety Code section 11378 (possession of methamphetamine for sale). Court affirm.

Defendant Vilma Peraza Williams appeals from a conviction of one count of forgery (Pen. Code, 470, subd. (a)) and one count of perjury ( 118, subd. (a)). She contends that substantial evidence does not support her forgery conviction. She also challenges her perjury conviction, arguing that it is invalid because the jury acquitted her of another, similar, perjury charge. Court disagree and affirm the judgment.