CA Unpub Decisions

Plaintiff and appellant Clayton McKinney (McKinney) appeals from the judgment entered against him in this employment discrimination case (retaliation under 42 U.S.C. section 1981)[1]after the trial court granted the summary judgment motion filed by defendant and respondent County of San Bernardino (County). In this appeal, McKinney contends the trial court erred when it granted the Countys motion for summary judgment. This is because, McKinney argues: (1) there is a genuine issue of material fact as to whether the County retaliated against him for being a witness in a County personnel investigation regarding racial discrimination against a coworker; and (2) he established a prima facie case of retaliation by producing a Notice of Case Closure from the California Department of Fair Employment and Housing (DFEH). As discussed below, we agree with the trial court that the pleadings do not support a reasonable inference that the County had a custom, policy or practice of discrimination, as is required to maintain an action under section 1981.

Yang contends that because he was not a named party in the action and was added as a judgment debtor after entry of judgment, he was deprived of his due process right to participate meaningfully in litigating the matter. Yang also contends there was insufficient evidence to support the trial courts finding that he was the alter ego of the corporations. Court conclude Yang had an opportunity to participate meaningfully in litigating this matter and there was overwhelming evidence Yang was the alter ego of the corporations. It would be inequitable not to hold Yang accountable for the debt the corporations incurred purchasing goods from plaintiff. The judgment is affirmed.

Plaintiff and appellant Dennis Dockstader appeals from a judgment of dismissal following the sustaining of demurrers in favor of defendants and respondents S.J. Amoroso Construction Co., Inc., HMC Corporation, and Emerald Development Company, Inc., in this action arising out of claims submitted by the Los Angeles Unified School District (LAUSD) to the State Allocation Board (SAB) for reimbursement of costs related to new school construction. Dockstader contends the allegations of the complaint stated a cause of action against Amoroso, HMC, and Emerald under the California False Claims Act (Gov. Code, 12650 et seq.) (CFCA). Court conclude that fraud allegations must be pled with specificity to state a cause of action under the CFCA and Dockstader failed to meet this requirement. Therefore, Court affirm the judgment.

Ian D. appeals from a sustained petition finding that he came under the provisions of Welfare and Institutions Code section 602.[1] The court found that Ian unlawfully took and drove a vehicle not his own in violation of Vehicle Code section 10851, subdivision (a), and placed him on home probation. Ian contends the court erred by denying his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) for discovery of the arresting officers personnel records. Court agree. He also contends, and Court agree, that the court improperly set a maximum period of confinement. Court reverse.

Appellant Dameon Dupree Fowlkes appeals from the judgment entered following a jury trial in which he was convicted of first degree murder (Pen. Code, 187, subd. (a))[1]and being a felon in possession of a firearm ( 12021, subd. (a)(1)). The jury also found that he personally and intentionally discharged a firearm which proximately caused great bodily injury and death ( 12022.53, subd. (d)) and that the offenses were committed for the benefit of a criminal street gang ( 186.22). Appellant was sentenced to 50 years to life. He contends that the court abused its discretion by limiting his expert witnesss testimony and improperly imposed a sentence for the firearm enhancement. Court affirm the judgment.

After the trial court denied his motion to suppress evidence (Pen. Code,[1] 1538.5), Albert Cienfuegos pled no contest to possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and admitted a prior strike conviction ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Pursuant to the plea bargain, the court dismissed the remaining charge and enhancement allegations and sentenced Cienfuegos to four years state prison, consisting of the upper term of two years doubled for the strike prior. Cienfuegos contends that the court erred in denying his suppression motion because the evidence leading to his arrest was the fruit of an unlawful detention. Court affirm.

Appellant Avetis Koshkaryan was convicted, following a jury trial, of two counts of attempted murder in violation of Penal Code[1]sections 187 and 664, two counts of attempted extortion in violation of section 524, one count of criminal threats in violation of section 422, one count of battery in violation of section 242, one count of evading a police officer in violation of Vehicle Code section 2800.1 and one count of credit card theft in violation of section 484, subdivision (e). The jury found true the allegation that appellant personally used and personally and intentionally discharged a firearm in the commission of the attempted murders within the meaning of section 12022.53, subdivisions (b) and (c). The trial court sentenced him to two life terms plus 26 years and eight months in state prison. Appellant appeals from the judgment of conviction, making numerous contentions of error. Respondent contends that the trial court erred in imposing a security fee pursuant to section 1465.8 on only one of appellant's eight convictions. Court agree with respondent, and order the fees imposed as set forth in our disposition. Court affirm the judgment of conviction in all other respects.

Appellant In Chun Lee appeals from an order granting a special motion to strike causes of action under the anti-SLAPP statute (Code Civ. Proc., 425.16). Court affirm. The trial court properly granted the motion because respondent Nourollah Elghanayan met his burden of demonstrating that the causes of action against him arose from protected activity, and appellant failed to show that the activity was illegal as a matter of law and that he had a probability of prevailing on his claims.

Selma Schimmel appeals from the judgment entered after the trial court granted summary judgment in favor of her insurer, Fire Insurance Exchange (the Exchange), a member of the Farmers Insurance Group, on her claims for breach of written contract (insurance policy) and breach of the implied covenant of good faith and fair dealing. The court determined both claims were barred by the one year limitations period contained in her insurance policy. Schimmel contends triable issues of material fact exist as to whether the limitations period was tolled and whether the Exchange was equitably estopped from asserting the limitations defense. Court affirm.

On March 28, 2007, at a hearing pursuant to Welfare and Institutions Code[1]sections 364 and 366.21, subdivision (e), the juvenile court granted sole legal and physical custody of minors G.F. and Gi.F. to their father, gave monitored visitation to appellant, Joyce C. (Mother), and thereafter terminated juvenile court jurisdiction. Mother appeals from the juvenile court findings and order terminating dependency jurisdiction over her children. Mother challenges the sufficiency of the evidence supporting the courts decision, under section 364, subdivision (c), to terminate jurisdiction over G. and Gi. The juvenile court is required to terminate jurisdiction unless the social worker or the social services agency establishes by a preponderance of the evidence that the conditions still exist that would justify initial assumption of jurisdiction under section 300, or those conditions are likely to exist if supervision is withdrawn.

Plaintiff Richard Y. Kim appeals from the judgment entered in favor of defendants IAC/InterActiveCorp. (IAC), Ticketmaster, Citysearch.com (Citysearch), Genevieve Owyang, and Kelly Amanda Smith following the courts granting defendants special motion to strike the complaint as a SLAPP suit (Strategic Lawsuit Against Public Participation) pursuant to Code of Civil Procedure section 425.16. The gravamen of Kims action was defamation based on an Internet review by Owyang of Kims professional services as a dentist and a complaint by Smith to the California Dental Board (Board). Kim raises a multitude of issues. Court affirm.

Edgar Hurtado and Juan Carlos Ortega appeal from the judgments entered upon their convictions by jury of three counts of premeditated and deliberate attempted murder (Pen. Code, 664/187, counts 1-3),[1]one count of shooting at an inhabited dwelling ( 246, count 4), and three counts of assault with a deadly weapon ( 245, subd. (a)(1), counts 6-8). Hurtado also appeals his convictions of two counts of having a concealed firearm in a vehicle ( 12025, subd. (a)(1), counts 9 & 10), and three counts of carrying a loaded, unregistered firearm ( 12031, subd. (a)(1), counts 5, 11 & 12). The jury found to be true, as to both defendants, in connection with counts 1 through 3 and 6 through 8, the principal armed with a firearm allegation within the meaning of section 12022, subdivision (a)(1), and, as to Hurtado, in connection with counts 1 through 3, the firearm allegation within the meaning of sections 12022.53, subdivisions (b) and (c), and, as to counts 6 through 8, the firearm allegation within the meaning of section 12022.5, subdivision (a). It also found as to Hurtado, as to counts 1 through 8, that when the charged offenses were committed, he was released from custody on bail or own recognizance within the meaning of section 12022.1. The trial court sentenced Hurtado to three consecutive life terms with the possibility of parole plus 20 years on each for the firearm enhancement in section 12022.53, subdivision (c) and to a determinate term of nine years and Ortega to life with the possibility of parole plus one year. Court affirm with directions.

Appellant Steven Xavier Hall was charged with possession for sale of cocaine base in violation of Health and Safety Code section 11351.5.[1] The evidence at trial established that the substance in question was cocaine base. The trial court instructed on the lesser included offense of possession of a controlled substance ( 11350), even though defense counsel did not want a lesser included offense instruction. Section 11350 penalizes both possession of cocaine base and possession of cocaine. The instructions and verdict form for the lesser included offense correctly named section 11350, but incorrectly named the substance that appellant possessed as cocaine, rather than cocaine base. The jury found appellant not guilty of violating section 11351.5, but guilty of violating section 11350, possession of cocaine, as a lesser included offense. Appellant was sentenced to 36 months of formal probation with 597 days of total custody credit. Court therefore affirm.

Calvin McPherson appeals his sentence on his conviction on one count of transportation of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11379, subdivision (a). On appeal he claims the trial court erred in failing to sentence him pursuant to Penal Code section 1210.1 (Proposition 36). Specifically, he claims the trial court abused its discretion in denying his request for a special jury finding on whether his transportation was for personal use under Penal Code section 1210. Appellant argues a jury finding that his transport of methamphetamine was for personal use would have established his eligibility for Proposition 36 treatment. Appellant further claims given the evidence presented at trial the court should have found him eligible for Proposition 36 treatment; he argues that the prosecutor should be required to prove beyond a reasonable doubt that appellants transportation was for something other than personal use and failing to do that, he was entitled to the finding of personal use. Furthermore appellant asserts that case law shouldering him with the burden of proof violates his federal constitutional rights to due process. As we shall explain, the trial court, not the jury, properly determines by the preponderance of the evidence whether under Proposition 36 a defendants drug possession or transportation was for personal use. The court is not legally required to submit the matter to the jury, nor would the court be bound by any finding of the jury as to the issue. Consequently, the court did not abuse its discretion in refusing a request for a special jury verdict on personal use. In addition, appellant has waived his federal constitutional due process claim by failing to assert it below. But even if he had preserved it, we would conclude it lacks merit. The due process clause does not require the prosecutor plead or prove beyond a reasonable doubt a sentencing factor which effectively serves to reduce the defendants punishment; thus allocating the burden of proof to the defendant and assessing the proof under the preponderance of the evidence does not amount to a violation of appellants due process rights. Accordingly Court affirm.