CA Unpub Decisions

Defendant and appellant George Kosmides (Kosmides) appeals an order denying his motion to vacate a default and default judgment obtained by plaintiff and respondent HICA Education Loan Corporation by and through its servicing agent Sallie Mae, Inc. (HICA). The essential issue presented is whether Kosmides was entitled to mandatory relief based on counsels affidavit of fault. (Code Civ. Proc., 473, subd. (b).) On the record presented, the trial court properly concluded the default was not attributable to counsel. Therefore, the order is affirmed.

Defendant, Martell Deandre Thomas, appeals from his conviction for first degree murder (Pen. Code, 187, subd. (a)) and firearm use and street gang findings. ( 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (c), (d).) Defendant argues the trial court improperly admitted suggestive and unreliable identification evidence and failed to award the proper number of presentence custody credits for actual confinement time. Court modify the sentence credit award but otherwise affirm the judgment.

Christopher Valles was sentenced to six years state prison after pleading no contest to lewd conduct on a child under the age of 14 (Pen. Code, 288, subd. (a)) and two misdemeanor counts of child molestation ( 647.6, subd. (a)(1)). The trial court awarded 39 days presentence credit consisting of 34 days actual custody and 5 days conduct credit. Appellant appeals from the judgment on the ground that the trial court miscalculated his presentence credits. Appellant claims that he was arrested June 20, 2007, and remained in custody until the July 31, 2007 sentencing hearing, thus entitling him to 42 days custody credit. At the sentencing hearing, appellant was advised that he had 34 days custody credit. Appellant asked the trial court to repeat the number and did not object, supporting the inference that the calculation was correct. (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 9.) The judgment is affirmed

Marisela C. Adams appeals an order granting summary judgment on several causes of action alleging retaliatory employment discrimination by the Los Angeles Unified School District (the District). Court affirm.

Plaintiff and appellant Belinda Padilla filed negligence and premises liability causes of action against defendant and respondent The Sports Club Company. Her complaint alleged that a pedal broke on a spin bicycle during a class, resulting in serious injuries. The trial court granted summary judgment in favor of The Sports Club based upon the waiver and release of liability agreed to by Padilla in her membership contract. Padilla timely appeals from the judgment entered in favor of The Sports Club.
The issues on appeal involve the validity of a waiver and release signed by Padilla in her membership contract with The Sports Club. Padilla argues the waiver and release were ambiguous and did not expressly exclude liability for injury due to malfunctioning equipment. She also argues there are triable issues of fact relating to assumption of the risk. We hold the waiver was not ambiguous, it eliminated any issue of implied assumption of the risk, and was in accord with a consistent line of cases upholding the summary judgment in favor of The Sports Club.

Plaintiffs and appellants My Pyo Lee and Jung Wha Lee filed an action against defendant and respondent Hamp, LLC, and defendants Kia Tran, Hoan Tran, Ky Quoc Nguyen, and Do Soo Suh,[1]alleging wrongful death, premises liability, and general negligence. The Lees action was based upon the tragic murder of their son, Chung Ho Lee, at a shopping center owned by Hamp. The Lees theory of liability was that Hamp was negligent in its failure to provide a security guard at the shopping center when their son was killed. The trial court granted summary judgment in favor of Hamp on the Lees first amended complaint. Court affirm.

Ed and Judith Kunda (the Kundas) appeal from an order amending a judgment. (Code Civ. Proc., 904.1, subd. (a)(2).) They contend that the alleged error in the October 11, 2006 judgment was not clerical and could not be corrected. They also contend that the trial court erroneously (1) granted an easement over their property to Ernest and Deirdre Watson (the Watsons), and (2) denied their request for injunctive relief to abate a nuisance created by the Watsons. Court affirm the trial court's order because the 2006 judgment was signed and prepared without reference to, and completely opposite of, the trial court's ruling that the Kundas had trespassed on the Watsons' property. This was a clerical error. Court also conclude that the Kundas are barred from seeking appellate review of the easement and injunctive relief issues because they did not timely appeal from the original judgment.

Plaintiff, attorney Raj Roy, appeals the judgment entered in his suit in quantum meruit for the reasonable value of his services in prosecuting defendant Lolita Resari's medical malpractice, prior to the termination of their contingency fee agreement. Finding no error, Court affirm.

On December 13, 2006, defendant and appellant Victor Poitier entered a no contest plea to a violation of Health and Safety Code section 11352, subdivision (a), for his conduct on October 14, 2006.[1] The trial court imposed and suspended the upper term of five years in prison, subject to a term of formal probation, which included a $200 restitution fine under Penal Code section 1202.4, subdivision (b). On October 24, 2007, defendant was found in violation of probation. Probation was formally revoked and the suspended five-year prison term was imposed. The court orally ordered defendant to pay the $200 restitution fine. However, the minute order and abstract of judgment reflected a restitution fine and a parole revocation restitution fine, both in the amount of $1,000. Defendant timely appealed, contending the court was not authorized to impose restitution fines in excess of the $200 originally imposed. The Attorney General agrees the abstract of judgment must be modified to reflect restitution fines in the reduced amount of $200. Court modify the judgment accordingly.

In these consolidated cases, father appeals from the jurisdictional and dispositional orders of the juvenile court as to C.V., his son by Y.R., and as to his daughter A.L., and sons A.L.2 and J.L., his children by E.B.[1] Father contends (1) no reasonable efforts were made to prevent or eliminate the need for detaining the children from his care, (2) the juvenile court erred in sustaining allegations under Welfare and Institutions Code[2]section 300 as to father, (3) there was no sufficient evidence to support the courts declaring the children dependents of the court or the orders removing them from fathers custody, and (4) the children should have been returned home to father, rather than suitably placed. Court affirm, finding the juvenile court properly exercised jurisdiction over the children and substantial evidence supports the juvenile courts orders removing the children from fathers care.

A.W. appeals from the juvenile courts judgment declaring him a ward of the court and confining him to community camp placement. Because he raises no arguable issues on appeal, Court affirm.

Jason Charles Tosti appeals from the judgment revoking probation and ordering him to serve a six-year prison sentence for gross vehicular manslaughter while intoxicated (Pen. Code, 191.5, subd. (a)) and driving with a .08 percent blood alcohol level causing injury (Veh. Code 23153, subd. (b)). Appellant asserts that the trial court abused its discretion. Court affirm.

A modification decision.

Daniel Lopez Portilla appeals from the judgment entered after the trial court found him guilty of corporal injury to a cohabitant (Pen. Code, 273.5, subd. (a)) , misdemeanor child endangerment ( 273a, subd. (b)), and false imprisonment by violence ( 236, 237). Appellant admitted a prior prison term enhancement ( 667.5, subd. (b)) and had prior convictions for domestic violence. The trial court sentenced him to five years eight months state prison. Court affirm.