CA Unpub Decisions

Plaintiff Mohammed El Gohary appeals from a judgment entered after a jury trial. El Gohary and three other plaintiffs[1]sued The Colyer Institute (Institute), David Fagan, Wendell Skinner, Jack Caldwell, and Blum and Clark Accountancy Group (Blum and Clark) after an international transaction, in which all of the parties were involved, fell through when an off-shore bank failed. The plaintiffs alleged causes of action for, among other things, breach of contract and fraud and deceit against all of the defendants. A jury concluded that neither the individual defendants nor Blum and Clark were liable to the plaintiffs for breach of contract or intentional misrepresentation. However, the jury found the Institute liable for intentional misrepresentations. The jury awarded El Gohary $27,500 in damages.We conclude that there is substantial evidence to support the jury's verdict, both with regard to the individual defendants, and as to Blum and Clark. Court further conclude that El Gohary forfeited his right to challenge the adequacy of the damage award against Institute by failing to move for a new trial in the trial court. Court therefore affirm the judgment of the trial court.

Harvey P. White, a limited partner in an investment fund, brought an action against the fund, and various entities associated with the fund, after the fund sustained substantial losses. In his initial complaint, White alleged contract and tort claims, asserting that defendants made numerous misrepresentations to induce White's participation in the fund, and then defendants substantially mismanaged the fund.
In a second amended complaint, White added allegations claiming damages after defendants entered into a settlement agreement with other fund investors in a Texas lawsuit. White alleged defendants breached their contractual and tort duties by refusing to disclose the terms of the settlement agreement, and by purchasing the Texas investors' holdings in the fund and refusing to offer him a similar opportunity. Based solely on these new allegations, defendants moved to strike the complaint, arguing the allegations challenge the prior settlement agreement and therefore arise from protected petitioning activity governed by the anti-SLAPP statute. (Code Civ. Proc., 425.16, subd. (e)(2).) The court denied the motion on the ground that the anti-SLAPP statute was inapplicable. The court thus did not reach the issue whether White proved a probability of prevailing on the merits. Defendants appeal. Court affirm. The allegations regarding the Texas settlement do not arise from protected petitioning activity because the gravamen of these newly asserted claims is based on defendants' conduct in purchasing the Texas investors' limited partnership interests, and not on written or oral statements made by the defendants in negotiating or executing the settlement agreement.

Raul De La Toba appeals from a judgment convicting him of attempted voluntary manslaughter, with enhancements for personal use of a deadly weapon and personal infliction of great bodily injury. Toba asserts his constitutional rights were violated when the trial court excluded defense evidence on hearsay grounds. Court hold the evidence should have been admitted, but find the error harmless.
As to sentencing, De La Toba argues: (1) the imposition of enhancements for both personal deadly weapon use and personal infliction of great bodily harm violated Penal Code section 654's proscription against multiple punishment; (2) the imposition of an upper term sentence was based on an improper dual use of facts and a factor unsupported by the record; and (3) the trial court's factual findings to support the upper term violated his jury trial rights under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi). Court find no reversible error and affirm the judgment.

Elizabeth K. appeals the judgment terminating her parental rights to Tanya F. and Carmen K. Elizabeth contends the juvenile court abused its discretion by summarily denying her Welfare and Institutions Code section 388 modification petition, erred by declining to apply the beneficial relationship and sibling relationship exceptions to termination ( 366.26, subd. (c)(1)(A), (E)), and should have ordered a permanent plan of long term foster care or guardianship. Court affirm.

A jury convicted defendant of kidnapping to commit rape (Pen. Code, 209, subd. (b)(1)),[1]making criminal threats ( 422), and rape ( 261, subd. (a)(2)) in concert ( 264.1), during all of which he used a firearm ( 12022.53, subd. (b)), 12022.5, subd. (a)(1)). Defendant admitted having committed all these crimes while released on his own recognizance in another case. ( 12022.1.) He was sentenced to life plus 22 years in prison. He appeals, claiming evidence was improperly excluded and admitted, his trial counsel was incompetent, and sentencing error occurred. Court reject all his arguments, save one regarding sentencing. As to it, Court remand the matter to the trial court, while affirming his convictions and the unaffected sentences.

A jury convicted defendant of possessing methamphetamine for sale (Health & Saf. Code, 11378) and conspiracy to transport/sell methamphetamine. (Pen. Code, 182(a)(1).) She was granted probation and appeals, claiming evidence was improperly admitted and sentencing error occurred. Court reject her contentions and affirm.

Defendant Armando Gutierrez appeals the trial courts denial of his suppression motion. He contends the trial court should have suppressed all evidence obtained during a traffic stop, because he was detained without a reasonable suspicion of criminal activity. The judgment is affirmed.

Colony owns a mobilehome park in Rancho Mirage. Defendant City of Rancho Mirage (the City) has a Mobilehome Park Rent Control Ordinance (the rent control ordinance or the ordinance), which applies to mobilehome parks and their residents located within Rancho Mirage. The ordinance is codified at chapter 9.58 of the Rancho Mirage Municipal Code (RMMC). The Citys Mobilehome Fair Practices Commission (the Commission) is charged with the duty of interpreting, implementing, and applying the ordinance. In June 2004, Colony served a 90-day Notice of Rent Increase on Lloyd and Therese Gallus (the Galluses), who rented space No. 216 in Colonys mobilehome park. Because the mobilehome space was not the Galluses principal residence, it was exempt from the rent control ordinance. (Civ. Code, 798.21.) Pursuant to the Notice of Rent Increase, Colony increased the Galluses monthly rent from $519.56 to $825. The rent increase went into effect on October 1, 2004. The Galluses did not contest the rent increase and started paying the increased rate as scheduled. The judgment is affirmed.

Jeremy H. appeals from a judgment declaring him a ward of the juvenile court and committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice. Minor contends that the juvenile court erroneously determined that his theoretical maximum term of physical confinement was eight years four months.[2] Relying on Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), minor contends that the juvenile court erroneously computed the theoretical maximum term by using the upper term of six years for the base term. He also contends the juvenile court failed to exercise its discretion to modify minors commitment order. For the reasons set forth below, Court affirm the judgment.

A jury found defendant guilty of transporting a controlled substance. (Health & Saf. Code, 11379, subd. (a).) Defendant admitted suffering a prior conviction that resulted in a prison term. (Pen. Code, 667.5, subd. (b).) The court sentenced defendant to state prison for a term of four years. Defendant contends the court violated his Sixth Amendment rights to a jury trial and to proof beyond a reasonable doubt by finding a fact that caused him to be ineligible for Proposition 36 probation. Court affirm the judgment.

Appellant T.B. (Mother) appeals from the denial of a petition for modification (Welf. & Inst. Code, 388)[1]regarding her dependent daughter, E. Mother contends the juvenile court relied on incorrect law when it denied the petition. Mother further contends the bench officer was biased, and she requests Court remand the case to be heard by another officer. Since the filing of this appeal, Mother has been granted further reunification services and, as a result, the Madera County Department of Public Welfare (the department) has filed a motion to dismiss the appeal on the ground of mootness. Mother now objects to the dismissal, arguing that the appeal is not moot because E. has not been returned to her custody.

We conclude the recent granting of further services to Mother moots her appeal of the order denying the petition for modification. In addition, we deny Mothers request that further proceedings be held before a different bench officer.

A modification decision.

Plaintiff Gary Harbaugh appeals from a judgment following a bench trial, as well as a post-judgment order awarding attorneys fees to defendants Yamaha of Santa Cruz County and Yamaha Motor Corporation USA (Yamaha Motor Corporation).[1] In his complaint, Harbaugh alleged that his motorcycle wobbled and that neither defendant properly repaired the motorcycle despite notice of the condition. Harbaughs causes of action included violation of the Consumers Legal Remedies Act (CLRA) (Civ. Code, 1750 et seq.)[2] and breaches of express and implied warranties under the Song-Beverly Consumer Warranty Act ( 1790 et seq.) and the Magnuson-Moss Warranty Act (15 U.S.C. 2301 et seq.). The trial court found in favor of defendants on all causes of action. Defendants subsequently filed a motion for attorneys fees and costs pursuant to section 1780, subdivision (d) of the CLRA, which authorizes an award of attorneys fees to the prevailing defendant if the court finds the plaintiff did not prosecute the action in good faith. The trial court concluded that Harbaughs action was not prosecuted in good faith and awarded Yamaha of Santa Cruz County $39,024 in attorneys fees and $5,338.05 for costs, and awarded Yamaha Motor Corporation $71,220 in attorneys fees and $4,020 for costs.
Court affirm the post-judgment order.

A jury convicted appellant James Robert Zook of first degree murder for the killing of Daniel Bloomfield. It also found true three firearm allegations. The trial court sentenced him to 50 years to life in state prison. Appellant challenges the performance of his counsel, the admission of certain evidence and the failure to deliver an instruction. Court conclude no prejudicial error occurred and accordingly affirm the judgment.