CA Unpub Decisions

Defendant contends his discussions with an associate pastor are privileged. He also argues the court erred in permitting evidence of prior bad acts. With the exception of ordering correction of the abstract of judgment, Court affirm.

N. B. (father) appeals from an order of the juvenile court terminating his parental rights to his son, C. B., under Welfare and Institutions Code section 366.26.[1] Father contends that the evidence is insufficient to support the finding that C. B. is adoptable and that notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) was improper. Court remand for compliance with ICWA.

David Erwin (Erwin) brought this negligence action after undergoing eye surgery at LasikPlus Vision Center (LasikPlus) in November 2003. He initially named LasikPlus and surgeon George Simon (Simon) as defendants, but a year later added LCA-Vision Inc. (LCA) by a Doe amendment. On appeal, Erwin challenges summary judgment granted to LCA on twin grounds that (1) the action, filed in February 2005, was untimely under the one-year-from-discovery rule (Code Civ. Proc., 340.5); and (2) the Doe amendment did not relate back to the actions filing because Erwin was not ignorant of LCAs identity (id., 474). Court reverse.

Leua Khamvan was injured while topping a tree in Humboldt County for Aadams Tree Service, Inc. (Aadams Tree), a subcontractor for work that Pacific Gas & Electric Company (PG&E) had initially engaged Davey Tree Surgery Company (Davey Tree) to perform. PG&E had previously contracted separately with Western Environmental Consultants, Inc. (WECI) to do work consisting of identifying needed tree work and notifying PG&E customers. Khamvan brought this negligence action against PG&E, Davey Tree, Terra Industries, Inc. (Terra Industries), and WECI. He appeals a judgment entered on a grant of summary judgment in favor of WECI. WECI had not been present or responsible for safety at the work site, but Khamvan alleged that WECI, months earlier, negligently underestimated the height of the tree and had recommended topping it. The court found the action barred by Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny, and found no liability under Civil Code section 1714 or Labor Code section 6400. Khamvan challenges each of those conclusions, as well as rulings excluding some of his evidence in opposition. Court affirm.

This is the third appeal we have reviewed regarding the same petition filed by plaintiff in March of 2003 in Mendocino County Superior Court. We quote from our previous nonpublished opinion in Dunn v. County of Mendocino (May 11, 2006, A111098), for background regarding the first two appeals: The trial court judgment is affirmed.

Appellant J.K. Selznick appeals from orders granting special motions to strike her original and amended complaints filed against her former attorney, Andrew M. Zacks (Zacks) and his law firm, Zacks, Utrecht & Leadbetter, P.C. (ZUL), motions made pursuant to the anti-SLAPP statute. (Code Civ. Proc., 425.16)[1] Selznick also appeals from related orders awarding attorney fees and costs to Zacks and ZUL under that statute. ( 425.16, subd. (c).) We conclude that the gravamen of the causes of action in both complaints is litigation-related conduct protected under the anti-SLAPP statute and that Selznick did not meet her burden of demonstrating a likelihood of prevailing on her claims. Court thus affirm.

Appellant Demas Yan appeals an order granting the special motion to strike of respondents Marc Coopersmith and Sierra Point Lumber and Plywood Co., Inc. (Sierra) pursuant to the anti-SLAPP statute (Code Civ. Proc., 425.16). He argues that his causes of action for libel, slander, and abuse of process did not arise from protected activity, and that he demonstrated a probability that he would prevail on his claims. Court disagree and affirm.

Appellant Frank Coverson brought suit against respondent San Francisco Unified School District (school district) alleging negligence and wrongful termination. On November 1, 2007,[1]the trial court sustained the school districts demurrer without leave to amend.[2] The court entered judgment against Coverson on December 18, and he appealed from that judgment on February 1, 2008. On appeal, Coverson challenges the timeliness of the demurrer. Court affirm the judgment.

M.H. appeals from a dispositional order committing him to a ranch facility after he was found to have committed a felony violation of Penal Code section 76, by threatening a judge. The contested issue on appeal is whether the jurisdictional finding was supported by substantial evidence. Court conclude that it was and affirm the finding.

A jury found defendant Jarvis Lewis guilty of felony transportation of ecstasy (Health & Saf. Code, 11379, subd. (a)) and misdemeanor transportation of less than an ounce of marijuana (Health & Saf. Code, 11360, subd. (b)). The trial court placed him on three years probation conditioned on serving 120 days in the county jail. Appellate counsel has filed an opening brief that raises no issues and asks this court for an independent review of the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Court find no arguable issues and affirm.

Pursuant to the Supreme Courts order of August 27, 2008, we vacate our decision in this case, filed March 9, 2007, and reconsider in light of People v. Towne (2008) 44 Cal.4th 63 (Towne), filed June 26, 2008.
Raymond Martinez was convicted of the first degree murder of Cesar Delatorre (count 1), with an enhancement for personal discharge of a firearm, causing death. He also was convicted of possession of a controlled substance (count 2), because methamphetamine was found in his pocket when he was arrested. He was sentenced to prison for 50 years to life on count 1, plus the upper term of three years on count 2. He contends: (1) The trial court should not have refused to instruct that a felony murder does not occur when a felony is committed in the course of an intentional murder. (2) Imposition of the upper term on count 2 violated his Sixth and Fourteenth Amendment rights of the United States Constitution to a jury trial. Court reject appellants instructional error, find no error from imposition of the upper term on count 2, and affirm.

Defendants Lamont T. Tarkington and Darris Allen appeal from their convictions of five counts of robbery and one count of commercial burglary. Defendants challenge the admission of certain evidence and the correctness of their sentences. Court affirm the convictions and modify the sentences.

Defendant Linus Ekene appeals from his conviction for first degree murder (Pen. Code, 187), with a true finding that he personally used a firearm in the commission of the offense (Pen. Code, 12022.5, subd. (a)(1).) He contends the trial court erred in refusing a continuance of the trial after the prosecutions case in order to permit him to determine whether to testify, and in failing to give a unanimity instruction. Court affirm.

Defendant Robert Rodriguez appeals from the judgment following his conviction of one count of selling a controlled substance, methamphetamine. He contends the trial court erred in not instructing the jury sua sponte that it must unanimously agree on which of two separate transactions constituted the sale. He also requests that we independently review the record of his Pitchess motion to determine whether additional complaints against officers involved in his arrest should have been disclosed. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
Court conclude that the court did not err in failing to give the unanimity instruction but that an additional complaint should have been disclosed to Rodriguez.