CA Unpub Decisions

Plaintiff and appellant 1100 Park Lane Associates (Park Lane) filed an unlawful detainer action against its tenant Peter Levis and Leviss subtenants, defendants and cross-appellants Konrad Feldman and Jennifer Foote-Feldman. The Feldmans filed a cross-complaint for damages against Park Lane, Walter Lembi and Andrew Hawkins (collectively Park Lane cross-defendants). Following dismissal of the unlawful detainer action upon Leviss giving up his tenancy and the Feldmans vacating the apartment, Park Lane cross-defendants filed a special motion to strike the cross-complaint pursuant to the provisions of Californias anti-strategic lawsuit against public participation (anti-SLAPP) statute (Code Civ. Proc., 425.16).[1] The trial court granted the anti-SLAPP motion as to the Feldmans cause of action for retaliatory eviction and denied it as to the remaining six causes of action of the cross-complaint. Park Lane cross-defendants appeal from the denial of their motion as to the six causes of action. The Feldmans cross-appeal from the grant of the anti-SLAPP motion on the retaliatory eviction cause of action. Court determine that the anti-SLAPP motion should have been granted as to all causes of action, except that of negligent misrepresentation.

Defendant Roger Hyder appeals from a judgment convicting him of attempting to commit a lewd act on a child under the age of 14 and attempting to distribute lewd matter to a minor by Internet or electronic mail. The intended victim was an adult private investigator posing as a 12-year-old girl named Lisa. Defendant testified that he did not believe that Lisa was under the age of 14 and thought she was an adult role playing as a child. Defendant contends that the trial court erred in instructing the jury that to negate the charged offenses his belief that Lisa was an adult had to be reasonable. He argues that an honest but unreasonable mistake of fact is a defense to the specific intent crimes with which he was charged. Court agree, but conclude that the instructional error was harmless.

After a six-day jury trial, plaintiff and respondent Harold Lightfoot, the owner an Arabian gelding named Crystals Charm (but usually referred to as Red, a name we shall use hereafter), was awarded $60,000 in damages as the result of false representations made by the defendants and appellants, an equine veterinarian and his San Mateo County-based company, regarding the consequences of performing palmar digital neurectomies on both of Reds front legs. As a consequence of the performance of these procedures by appellants, Lightfoot alleged, and the jury apparently found, Red was thereafter unable to compete in international competition, a fact which caused Lightfoot monetary damage. Appellants ask this court to reverse, contending there was no substantial evidence of either (1) false statements having been made by appellant, Dr. Russell Peterson, to Lightfoot or (2) any intent on the part of appellants to mislead Lightfoot or induce his reliance on a false representation. Court agree with the latter portion of this argument and hence reverse the judgment.

Appellant Christina Patrina Boyer appeals from a judgment terminating her probation pursuant to Proposition 36, and sentencing her to prison for two years on a subsequent failure to appear charge plus a consecutive eight months on the underlying drug offense. Court affirm the judgment.

Donte J. is a teenager who has had extensive experience with the juvenile court. While already a ward of that court, Donte became involved in a schoolyard fracas that led to this delinquency proceeding. The prosecuting attorney filed a subsequent petition in which it was alleged that during the fracas Donte committed felony battery involving the infliction of serious bodily injury (Pen. Code, 243, subd. (d)), and also committed felony assault by means of force likely to cause great bodily injury (Pen. Code, 245, subd. (a)(1)). The evidence introduced at the jurisdictional hearing showed that the petition overcharged. After hearing all the evidence, the juvenile court initially granted Dontes motion to dismiss the battery charge as alleged. The court then concluded that Donte had committed a battery on school property (Pen. Code, 243.2), which the court sustained as a lesser offense of the assault charge. At the dispositional hearing, the court continued Donte as a ward, admitted him to probation, and ordered him placed in a group home under the supervision of the probation officer.
The contentions Donte advances on the timely appeal are entirely procedural. Distilling them to their essence, his arguments are that no misdemeanor battery could be found because the court had already dismissed the felony battery count alleged, and that the misdemeanor battery count could not be sustained because it was not a lesser included offense of the remaining charged offense of felony assault. We conclude that, viewed in proper context, the courts dismissal of the felony battery count as alleged did not disable the courts power to find that a lesser included offense was made out. However, the misdemeanor battery found, that is, one committed on school property, was improper. Court therefore will modify the juvenile courts jurisdictional finding to reflect that Donte committed simple misdemeanor battery, and affirm.

A modification decision.

Richard T. Abbate (Abbate) and Edward J. Meyers (Meyers) appeal from an order denying their anti-SLAPP special motion to strike the first amended complaint of respondent Santa Clara County Correctional Peace Officers Association. (Code Civ. Proc., 425.16.) Among other things, appellants contend that their allegedly unauthorized use of the Associations funds is constitutionally protected activity. Court affirm the order.

Counsel for defendant Jason Cline Christensen has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents defendant has been apprised of his right to file a supplemental brief. Defendant has not filed a brief. Court have conducted the review requested by counsel, and finding no arguable issues, affirm the judgment.

Appellants J.L. (mother) and R.P. (father) appeal the juvenile courts order declaring their baby daughter W.P. to be a dependent child and removing her from their custody. They argue that insufficient evidence supports the juvenile courts order. Court disagree and affirm.

Appellant Levi Anthony Olmstead (appellant) appeals from a three-year state prison sentence he received (subject to local custody credits) following his no-contest plea to all criminal charges brought against him, including a prior prison allegation. Appellants counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this courts attention. No supplemental brief has been filed by appellant personally. The judgment is affirmed.

Defendant Francisco P. timely appeals from the juvenile courts November 6, 2007 order declaring him a ward of the court, returning him to his mothers custody under the supervision of the probation officer, and placing him on probation, after he admitted receiving stolen property. Franciscos appointed appellate counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436, identifying no potentially arguable issues. Counsel has also advised Francisco of his right to file a supplemental brief, which Francisco has not done. Court have reviewed the entire record and agree with counsels assessment that there is no issue warranting further briefing.

A modification decision.

After a lengthy trial, a jury found that appellants Hales Engineering Co., Ray A. Hales, R. A. Hales, Inc., Jeremy Jenkins, Ducworks Inc., and Mountain West Attachments misappropriated the trade secrets of respondent ATECO, also known as American Tractor Equipment Co., and converted its property. It further found that R.A. Hales, Inc. breached a licensing agreement with ATECO. The jury awarded ATECO compensatory damages totaling $333,743. It also found that, although appellants acted fraudulently toward ATECO, they did not act with malice or oppression. On the parties' stipulation, the trial court decided ATECO's punitive damages claim, awarding ATECO $159,000. The trial court later awarded ATECO attorneys' fees totaling $534,276.50.
Appellants challenge only the attorneys' fee award. They contend the trial court failed to specify whether it was awarding fees under the fee-shifting provision of the licensing agreement or under Civil Code section 3426.4, which provides that if a "willful and malicious misappropriation exists, the court may award reasonable attorney's fees to the prevailing party." Appellants further contend that ATECO was not entitled to recover its fees on either theory, that the trial court erred in failing to apportion the fee award between statutory and contractual fees, and that the amount of the award was unreasonable and excessive. Appellants also contend the trial court erred in awarding $40,918.50 in expert witness fees and that certain appellants are entitled to recover their own attorney fees and costs under Code of Civil Procedure section 998 and Civil Code section 3426.4. Court affirm.

In Court's prior opinion filed March 26, 2007, Court remanded the matter for resentencing in light of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham) and affirmed the judgment in all other respects. Our Supreme Court granted review. On September 12, 2007, it transferred the matter to this court with directions to vacate our prior decision and reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825. As directed, we have reconsidered the matter and reviewed the parties' supplemental briefs on the sentencing issue. Court issue a new opinion and affirm.