CA Unpub Decisions

This is the third in a series of lawsuits filed by Damir De Balkany (De Balkany) against Mission Plaza Townhomes Owners Association et al. (Mission Plaza).[1] Although the complaint alleges numerous wrongful acts against Mission Plaza, the primary focus of the lawsuits is a dispute over reconstruction of a balcony attached to De Balkany's condominium units. This appeal is from orders granting Mission Plaza's motion to enforce a settlement agreement and awarding it attorney fees pursuant to Civil Code section 1717.[2] De Balkany asserts that, although the trial court granted Mission Plaza's motion to enforce the settlement agreement and awarded it attorney fees, the court in fact gave De Balkany all the relief he requested in his counter motion to enforce the agreement; therefore, he, not Mission Plaza, is the prevailing party and entitled to attorney fees under section 1717. Court affirm.

This is a family law case in which the trial court entered a judgment on reserved issues ordering Michael Sullens to pay Mary Sullens monthly child and spousal support, plus $14,115 in reimbursement for child support payments for Michaels children from a prior marriage, plus $7,500 for Marys attorneys fees. Michael appeals from the judgment and the fee order, challenging the sufficiency of the evidence and the attorney fee award. On January 29, 2008, we filed an opinion dismissing the appeal as untimely (In re Marriage of Sullens (Jan. 29, 2008, B193621 [nonpub. opn.]) but thereafter (on February 28) granted Michaels petition for rehearing. Court now address Michaels issues, find merit in one of his contentions, modify the judgment and, as modified, affirm.

The trial court denied a motion by appellant Pius Joseph under Code of Civil Procedure section 425.16-- the law designed to curtail the filing of strategic lawsuits against public participation, often called the anti SLAPP law in an action for malicious prosecution by respondents Scott Tranter and Crazy Ottos Diner. Court affirm.

Plaintiff Simon Benjamin sued Flora Rafie, Nasser Rafie, and Stella Rafie alleging defendants fraudulently appropriated cash and real property in Santa Monica and Iran, which assets Benjamin claimed belonged to him. The court sustained without leave to amend defendants demurrers to numerous of Benjamins causes of action in his first through third amended complaints, dismissed one cause of action on the basis of inconvenient forum, and granted summary adjudication of still other causes of action. Benjamin seeks review of the courts rulings. Court deem this as a petition for writ of mandate and grant it in part and deny it in part.

Edy Ronaldo Aristondo appeals from a judgment following his conviction, after a jury trial, of two counts of committing a lewd act upon a child under the age of 14 and one count of aggravated sexual assault of a child. (Pen. Code, 288, subd. (a), 269.) The court sentenced him to 15 years to life in prison for the count two aggravated sexual assault, a six-year concurrent middle term for count one, and a stayed sentence for count three. Appellant challenges the sufficiency of the evidence, raises instructional error, and argues that the jury committed misconduct. Court affirm.

Defendant and appellant Anthony Maurice Durden appeals from the judgment entered following a jury trial that resulted in his conviction for furnishing or giving away cocaine base. Durden was sentenced to a prison term of 14 years.
Durden contends the trial court: (1) erred by admitting prejudicial evidence; (2) erroneously failed to give CALCRIM No. 224, regarding circumstantial evidence; (3) abused its discretion by denying his posttrial motion for disclosure of confidential juror information; and (4) miscalculated his custody credits. Court correct Durdens custody credits as requested. In all other respects, Court affirm.

AMCAL Multi-Housing, Inc. (AMCAL), challenges an award of prejudgment interest on damages for breach of contract in favor of Affordable Shelters, Inc. (Affordable Shelters). AMCAL contends the prejudgment interest award was based on the courts speculation as to the elements of damages awarded by the jury, and the damages purportedly awarded were neither due and owing nor ascertainable as required to support an award of prejudgment interest under Civil Code section 3287, subdivision (a).[1] We conclude that the award of prejudgment interest on some of the damages awarded by the jury was based on speculation as to the elements of damages awarded, and therefore was improper. We conclude further that although it appears that the jury award included $75,000 in damages for loss of a developers fee on a project, that amount was not due and owing before the entry of judgment and therefore cannot support an award of prejudgment interest. Therefore, Affordable Shelters is not entitled to an award of prejudgment interest under the statute and Court modify the judgment accordingly.

Sarkis Baghikian sued Iman Gibson for nuisance and trespass, and Gibson cross-complained against Baghikian. Gibson did not adequately respond to discovery requests that Baghikian propounded, and she did not comply with the trial courts order requiring her to provide further responses. The trial court ultimately struck Gibsons pleadings, entered her default, conducted a prove up hearing, and entered judgment in favor of Baghikian. Gibson appeals, and Court affirm.

Stephanie Miller and New Vision Residential Care Center, Inc. (New Vision), appeal a judgment and the denial of their motion for judgment notwithstanding the verdict. The judgment denies Miller relief on her complaint against Karen Chavez and Norman Chavez pursuant to a pretrial order granting summary adjudication, and awards Karen Chavez $24,362 in damages against Miller and $7,438 in damages against New Vision on the Chavezes cross-complaint. Millers principal contentions are that there was no proper basis for summary adjudication, that the evidence is insufficient to support an implied finding that she was New Visions alter ego, and that the court erred in awarding attorney fees to the Chavezes as prevailing parties. Court conclude that the summary adjudication was proper. We also conclude that there is no substantial evidence to support the alter ego finding and therefore no basis for Millers liability on the cross-complaint. Court conclude further that Miller is not entitled to judgment notwithstanding the verdict and that a complete new trial on the cross-complaint against both Miller and New Vision is required. Court therefore will reverse the judgment and affirm the order denying the motion for judgment notwithstanding the verdict.

Alicia Pinedo Bello, her husband Ruben Bello and their adult son Ruben Bello Pinedo (the Bellos) appeal from the judgment entered in this action brought by R. Marie Estrada and Tracy Torres, as conservators of the person and estate of Fred Ortega (the conservators), to invalidate a real estate and personal services contract between Ortega, on the one hand, and Alicia[1]and Ruben Jr., on the other hand. The trial court invalidated the contract, finding it the product of the Bellos undue influence and awarded the conservators their attorney fees. On the Bellos cross-complaint for breach of contract and common counts, the court awarded the Bellos some of their out-of-pocket expenses incurred in repairing the Ortega home. The Bellos contend the court erred in failing to reimburse them for all the expenses incurred and services provided to Ortega during the contract period. The conservators have cross appealed, contending the trial court erred in permitting the Bellos any recovery for expenses incurred and in calculating the attorney fee award. Court affirm.

Appellant Karen M. Dominguez (Dominguez) is an operating room technician. She was injured when a patient fell on her. She sued respondent Cameron Eugene Lindberg, M.D. (Dr. Lindberg) alleging that he caused the patient to fall when he negligently unstrapped her from a surgical platform following surgery. She appeals from the order granting Dr. Lindberg's motion for judgment on the pleadings contending that the trial court erred when it applied the one-year statute of limitations applicable to professional negligence of a health care provider. (Code Civ. Proc., 340.5.)[1] She contends that the action was for general negligence subject to the two year statute of limitations. ( 335.1.) Court affirm.

After Cesar Quintero Flores struck Miguel Silva Reyes in the face with a beer bottle, Flores was charged by information with two counts of assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)). It was further alleged Flores personally inflicted great bodily injury upon a person not an accomplice in committing the aggravated assault ( 12022.7, subd. (a)). Floress motion to set aside the information ( 995) as to the first count of aggravated assault was granted and the prosecution proceeded on the second count.
The judgment is affirmed.

Appellant Cynthia Louise Hoek (Hoek) was convicted in California of driving under the influence of alcohol (DUI) offense. Hoek was subsequently convicted of a DUI offense in Minnesota. Because these two convictions occurred within 10 years of one another, respondent California Department of Motor Vehicles (the DMV) suspended Hoeks California driving privilege pursuant to Vehicle Code section 13352, subdivision (a)(3)[1]for two years. Hoek challenged the suspension by filing a petition for administrative mandamus, which the trial court denied. Court affirm

Mitchell Benavides appeals from the judgment entered following his no contest plea to count 1, assault on a police officer with a semiautomatic firearm (Pen. Code, 245, subd. (d)(2)) and his admission that he discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (c). He also admitted that he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)) and one prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1). He was sentenced to prison for a total of 35 years, consisting of the low term of five years for count 1, doubled to 10 years by reason of the Three Strikes law, plus 20 years for the firearm enhancement and five years for the serious felony enhancement.[1] He requested but was denied a certificate of probable cause. The judgment is affirmed.