CA Unpub Decisions

This case presents questions concerning the validity and enforcement of an arbitration provision in contracts for the rental of sites in a mobilehome park. The trial court denied a motion by defendants, park owners and operators, to compel arbitration of the residents claims against them, finding that the arbitration provision was void as contrary to public policy and that enforcement of the provision presented a possibility of conflicting judgments in related proceedings. Defendants appeal, contending there is no public policy against the arbitration agreements, no possibility of conflicting rulings on common issues of law or fact was shown, and the arbitration agreements are not unconscionable. Court find the trial court properly declined to enforce the arbitration agreements pursuant to Code of Civil Procedure section 1281.2, subdivision (c), and affirm on that basis.

Defendant Ricardo Diaz Lopez appeals from a judgment entered after a jury convicted him of assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1); count 1)[1]and mayhem ( 203; count 2). The jury also found that defendant personally caused great bodily injury in the commission of the assault ( 12022.7, subd. (a)). The court sentenced defendant to prison for an aggregate term of five years. On appeal, defendant contends: (1) the court was without jurisdiction to try him on count 2 because the court did not find probable cause at the preliminary hearing to hold him to answer on the mayhem charge; (2) there was insufficient evidence to support his subsequent conviction of mayhem; and (3) the court erred in failing to instruct on battery with serious bodily injury as a lesser included offense of mayhem. Defendants contentions primarily hinge on his assertion there was no evidence the facial scar he inflicted on the victim was permanent. For reasons discussed below, we find defendants assertions in this regard to be without merit and affirm the judgment.

In Miguel L.s (Miguel) second appearance before the juvenile court, the court found he had committed misdemeanor vandalism (Pen. Code, 594, subd. (b)(2)(A)). The court adjudged Miguel a ward of the court and ordered he be placed on probation and perform 80 hours of community service. On appeal, Miguel contends there is insufficient evidence identifying him as a perpetrator in the crime and there is insufficient evidence that a vandalism occurred. Court find the evidence sufficient, and will affirm the judgment.

Abraham Martinez Guajardo appeals from a judgment after a jury convicted him of first degree murder. He argues insufficient evidence supports the jurys finding the murder was deliberate and premeditated, there was evidentiary error, and there were instructional errors. None of his contentions have merit, and Court affirm the judgment.

Defendant contends the court erred in not permitting a witness to testify about what she knew defendant was thinking at the time of the crimes. He further argues he was prejudiced by prosecutorial misconduct. He also claims the improper imposition of a parole revocation restitution fine as well as a court security fee. Court affirm except for the parole revocation restitution fine, which Court reverse.

Defendant Dieter K. Rapp appeals from an order denying his special motion to strike under Code of Civil Procedure section 425.16 (anti-SLAPP motion; all further statutory references are to this code unless otherwise stated) the complaint on common counts by plaintiff Shahnaz E. Tehrani. He claims he met his burden to show the cause of action for money had and received is protected activity under section 425.16 and that defendant did not show the likelihood of prevailing on her claims for money had and received. Court disagree with the first contention and thus affirm.

Two insurance companies covered the same insured, one as the primary insurer and the other as the excess carrier. The underlying case settled, with the primary carrier paying $500,000 more than its policy limits. Via cross-motions for summary judgment, the trial court agreed with the primary carrier that it was entitled to recover the $500,000 it paid above its policy limits. Based on the complaint, Court find that the primary carrier was not entitled to such relief and therefore reverse.

Fernando Manuel Martinez was charged with a collection of serious felonies comprising three counts of attempted murder, three counts of assault with a semi-automatic firearm, one count of possession of a firearm on school grounds, one count of possession of a firearm by a felon, one count of possession of ammunition by a prohibited person, and one count of street terrorism. It was further alleged that in the commission of the three counts of attempted murder, he had personally discharged a firearm, and that he had personally used a firearm in the assault with a semiautomatic counts. To this were added allegations that the whole thing was done on behalf of a criminal street gang, and that appellant had previously suffered three strike priors, two of which also qualified as priors for enhancement purposes other than the Three Strikes Law. This laundry list of miscreance exposed him to a maximum penalty of eighty-two years and four months in state prison. After several days of trial, however, Martinez withdrew his not guilty pleas and substituted a guilty plea to all counts and all of the enhancements, save one, in exchange for an indicated sentence of 35 years in prison. His request for a certificate of probable cause was denied. Appellant was given the opportunity to file his own brief in the matter and we have reviewed that as well. Court still find nothing in the trial record to support an appeal and therefore affirm the judgment.

On July 18, 2007, without trial, the superior court issued a retroactive order of commitment against Bruce Gordon under the new provisions of the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, 6600 et seq.)[1] The order committed him to an indeterminate term of commitment as a Sexually Violent Predator (SVP) commencing on June 27, 2000, the date of his original commitment. Appellant challenges the retroactive commitment order on a variety of grounds, both constitutional and statutory. Court reverse.

In the fall of 2001, defendant Raymond Charles Quinonez and his coconspirators planted a number of pipe bombs[1] by schools and other public places in the City of Watsonville. They then telephoned authorities to report the bombs and, while law enforcement was occupied investigating the bomb threats, they entered a business in a different part of town, pointed a semi-automatic handgun at the employees, and demanded cash. Defendant was convicted of conspiracy to commit robbery (Pen. Code, 182, subd. (a)(1), count 1),[2] attempted robbery ( 664, 211, count 13) and six offenses related to his planting the bombs and later calling in false bomb threats ( 12303.2, 148.1, counts 6-11). He was sentenced to 25 years and four months in prison. Court reject his remaining assertions and, as modified, affirm the judgment.

Defendant William Don Ross was charged with pimping of a prostitute under the age of 16. (Pen. Code, 667, subd. (b)(2).) Defendant brought a motion to suppress evidence pursuant to Penal Code section 1538.5 Following a hearing, the trial court denied the motion. After the prosecutor amended the information, defendant pleaded no contest to attempted pimping of a prostitute under the age of 16. Pursuant to a negotiated agreement, defendant was placed on probation on condition that he serve one year in county jail. Defendant has filed a timely appeal.
The judgment is affirmed.

Defendant Ruben S. Elpedes was convicted by a jury of perpetrating a lewd act on a child (Pen. Code, 288, subd. (a)), and was sentenced to the midterm of six years in prison. Defendant contends on appeal that the judgment must be reversed because the prosecutor committed misconduct in his opening statement, and the court abused its discretion in denying his motion for a mistrial based on the allegedly improper remarks. Court find no misconduct, prejudice, or abuse of discretion, and Court affirm the judgment.

This is an appeal from a judgment of dismissal of the first amended petition of plaintiffs and appellants Urban Habitat Program and Sandra DeGregorio (collectively referred to as Urban Habitat) for a writ of mandate and their complaint for declaratory and injunctive relief (the complaint), following the demurrer of defendants and respondents City of Pleasanton and Pleasanton City Council (collectively referred to as City).
Urban Habitat contends the trial court erred in granting the Citys demurrer because: (1) it misconstrued the applicable statutes of limitations set out in Government Code section 65009[1]and Code of Civil Procedure section 338, subdivision (a); and (2) it misapplied the ripeness doctrine. We agree and, accordingly, reverse the judgment of dismissal except as it applies to two causes of action (the fifth and sixth), as to which Court affirm the judgment.

A modification decision.