CA Unpub Decisions

Appellant Rainer J. Faerber appeals from the order granting attorney Robert Schroth and Winters, Schroth & Kings (hereafter referred to as respondents) special motion to strike under Code of Civil Procedure section 425.16 (hereafter section 425.16). Section 425.16 sets out a procedure for striking complaints in lawsuits that are commonly known as SLAPP suits (strategic lawsuits against public participation). Appellant contends that the trial court erred in finding that the right to petition and the right to freedom of speech under section 425.16 applies to knowingly making a false accusation of sexual abuse of a minor in a family law proceeding. He also contends that the trial court erred in finding that his underlying cause of action against respondents for intentional infliction of emotional distress lacks merit. Court disagree with appellant and affirm the order.

This is an appeal from a judgment of conviction for possession of a firearm by a felon. The judgment was reached after the trial court denied appellant Jerome D. Joness motion under Penal Code section 1538.5 to suppress evidence. Court affirm.

Petitioner Liza Jane Gaoay (Gaoay) contends that real party in interest Brent C. Maloys (Maloy) notice of appeal from a judgment rendered by the small claims court was untimely. Gaoay argues the superior court therefore lacked jurisdiction to consider the appeal and to reverse the judgment in her favor. Court agree and reinstate Gaoays judgment.

Efrain Castillo appeals from the judgment entered following his convictions by jury on 15 counts of committing a lewd act upon a child (Pen. Code, 288, subd. (a)). The court sentenced him to prison for 45 years to life. Appellant claims trial errors occurred. Court affirm the judgment with directions.

Defendants and appellants Kyu Sik Kim and Jun Hwan Kim appeal from the sentences imposed following their convictions of kidnapping and other offenses. Specifically, they contend the trial court erred in denying them probation and sentencing them to prison. We conclude the trial court did not abuse its discretion and therefore affirm. Appellants also contend the court erred in calculating their presentence credit; the prosecution concedes the error, and contends the court erred in omitting certain concurrent sentences from the abstracts of judgment. Court agree with both contentions, and direct that the abstracts of judgment be modified.

Christopher Dickerson appeals from the judgment entered following an order revoking probation. Previously he had pled guilty to count 2, possession of a controlled substance, (Health & Saf. Code, 11377, subd. (a)) and had been sentenced to prison for the upper term of three years with execution of the sentence suspended. Pursuant to the negotiated plea, count 1, possession for sale of cocaine base, (Health & Saf. Code, 11351.5) was dismissed and appellant waived credit for time served. As a condition of probation, appellant was ordered to complete a six-month to twelve-month residential program and to submit to periodic anti-narcotic tests as directed by his probation officer.
Appellants motion for pretrial discovery was denied without prejudice. After filing a supplemental declaration in support of the motion, the motion was granted in part and denied in part. Following an in camera hearing, the court concluded there were no complaints of officer misconduct to be disclosed. The judgment is affirmed.

Gustavo McKenzie appeals from the judgment entered following his conviction by jury of carrying a concealed dirk or dagger (Pen. Code, 12020, subd. (a)(4)) with admissions that he suffered a prior felony conviction (Pen. Code, 667, subd. (d)) and two prior felony convictions for which he served separate prison terms (Pen. Code, 667.5, subd. (b)). The court sentenced appellant to prison for three years. Appellant claims trial errors occurred. Court affirm the judgment.

Appellant Latham Properties LLC[1](Latham) appeals from a final judgment granting specific performance on a sale of property to respondent Jose Vargas (Vargas). The judgment was entered after the trial court granted Vargass motion for a new trial and held a new trial of the matter. Because the order granting the motion for new trial was entered after the expiration of the mandatory, jurisdictional 60-day time limit for ruling on such a motion, it is void. Court therefore reverse the judgment.

Certified Environments, Inc. (Certified), and Gregory F. Paulay appeal a summary judgment in favor of National Cooperative Bank (NCB).[1] NCB hired Certified to perform construction management services in connection with the renovation of a housing project for which NCB was the construction lender. After the owner, Ocean Towers Housing Corporation (Ocean Towers), sued Certified and Paulay for damages, Certified and Paulay filed a separate action against NCB for equitable and contractual indemnity. Certified and Paulay challenge the trial courts conclusion that a release provision in a settlement agreement from prior litigation to which Ocean Towers, Certified, and NCB were parties precludes their claims alleged in this action. We conclude that the release precludes the plaintiffs claims against NCB only to the extent that those claims arise from matters that had occurred as of the date of the settlement agreement. NCB has not shown that the plaintiffs claims action arose solely from matters that had occurred as of the date of the settlement agreement and therefore is not entitled to summary judgment on that basis. Court also conclude that the parties continued performance of the construction management contract shows that they never intended to extinguish their obligations under the contract, and that NCB is not entitled to summary judgment based on the purported discharge of the contractual indemnity provision.

Appellant Cayton and respondent TRE Holdings, LLC (TRE) each claimed the sum of $27,500 interpleaded into the action between 1538 Cahuenga Partners, LLC and Turmeko Properties, Inc. TRE based its claim on a judgment lien it held against Turmeko. Cayton based her claim on a $5,000 loan she made to Craig Harris, a creditor of Turmeko. The order is affirmed.

Ramon Arceo appeals from the judgment entered following his convictions by jury on two counts of attempted willful, deliberate, and premeditated murder (Pen. Code, 664, 187; counts 1 & 2) with, as to each count, findings that appellant personally used a firearm (Pen. Code, 12022.53, subd. (b)), personally discharged a firearm (Pen. Code, 12022.53, subd. (c)), and committed the offense for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(C)), and with, as to count 1 only, a finding that appellant personally discharged a firearm causing great bodily injury (Pen. Code, 12022.53, subd. (d)), and following his convictions on two counts of assault with a firearm (Pen. Code, 245, subd. (a)(2); counts 3 & 4) with, as to each count, findings that appellant personally used a firearm (Pen. Code, 12022.5, subd. (a)), and committed the offense for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(C)), and with, as to count 3 only, a finding that he inflicted great bodily injury (Pen. Code, 12022.7). The court sentenced appellant to prison for an unstayed determinate term of 40 years, plus two consecutive terms of life with the possibility of parole, plus 25 years to life for the Penal Code section 12022.53, subdivision (d), enhancement pertaining to count 1. Appellant claims the trial court committed trial and sentencing errors. Court will modify the judgment and, as modified, affirm it with directions.

Bobby Nash (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of transporting a controlled substance, cocaine base (Health & Saf. Code, 11352, subd. (a)) and possessing cocaine base for sale (Health & Saf. Code, 11351.5). In bifurcated proceedings, the trial court found that defendant had one prior conviction of a serious or violent felony requiring sentencing pursuant to the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12)[1]and that he had served two separate prison terms for a felony ( 667.5, subd. (b)). The trial court sentenced him to an aggregate term of nine years in state prison.
He contends that (1) there was Faretta error (Faretta v. California (1975) 422 U.S. 806 (Faretta)), and (2) the prosecutor committed misconduct. Additionally, as is authorized by the decision in People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232, (3) defendant requests a review of the in camera discovery proceedings on the Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)).

Albert Bugsy Alvarado appeals from the judgment entered upon his convictions by jury of second degree robbery (Pen. Code, 211, count 1)[1]possession of a firearm by a felon ( 12021, subd. (a), count 2), and possession of ammunition ( 12316, subd. (b)(1), count 3). In connection with count 1, the jury found to be true the firearm-use allegation within the meaning of section 12022.53, subdivision (b). The trial court found to be true the allegation that defendant had suffered two prior felony convictions within the meaning of sections 1170, subdivisions (a) through (d) and 667, subdivisions (a) and (b) through (i). After denying defendants Romero[2]motion seeking a dismissal of one or both of his prior felony strike convictions, the trial court sentenced him on count 1 to 25 years to life plus 10 years for the firearm-use enhancement, plus five years for each of the two prior convictions under section 667, subdivision (a). It stayed sentence on counts 2 and 3 pursuant to section 654. Defendant contends that the trial court erred in denying his Romero motion because it did not exercise discretion, mistakenly believing that all of his current convictions were strikes.
Court vacate defendants sentence, remand for resentencing, and otherwise affirm.

Plaintiffs and appellants Mona Flaum and Kerry Fairly (collectively appellants) appeal the dismissal of their class action against defendants and respondents ASN Calabasas I LLC, ASN Calabasas II LLC, Archstone, Archstone Property Management (California) Incorporated, and Archstone-Smith Operating Trust; Legacy Malibu Meadows II, L.P., Legacy Malibu Meadows, L.P., Legacy Partners Residential, L.P., and Legacy Partners Residential, Inc. (collectively respondents) for damages allegedly incurred as the result of water intrusion and mold in a residential apartment complex at which appellants resided. Appellants contend the trial court erred by sustaining demurrers, without leave to amend, to their causes of action for breach of contract and violation of Business and Professions Code section 17200.[1] Appellants further contend the trial court abused its discretion by striking their class action allegations. Court affirm the orders sustaining the demurrers to the breach of contract cause of action and striking the class allegations. Court reverse the orders sustaining the demurrers to the section 17200 cause of action and dismissing appellants action.