CA Unpub Decisions

Plaintiff Dalia Sosa sued her homeowners association, Rockpointe Homeowners Association, Inc. (RHA), and a mold remediation company, Sky Blue Environmental, Inc. (Sky Blue), for damages for personal injuries allegedly caused by exposure to toxic mold in her condominium unit after her unit had a plumbing leak. On April 17, 2006, a summary judgment was entered in favor of RHA on the grounds (1) that the action was barred by an exculpatory clause in the declaration of covenants, conditions and restrictions (CC&Rs) governing the relationship between Sosa and RHA and (2) RHA was entitled to judgment on the claim for breach of warranty because it was not a merchant which sold goods to Sosa. On May 1, 2006, a summary judgment was entered in favor of Sky Blue on the grounds that Sky Blues conduct was not a cause of Sosas injuries and the lack of a contractual relationship between Sosa and Sky Blue barred the claim for breach of warranty. Because the exculpatory clause, reasonably interpreted, does not bar liability for negligent remediation and repair, but rather water damage in the first instance, and because triable issues of fact exist as to the negligence claims against both RHA and Sky Blue, Court reverse the summary judgments.

Dennis Larson (husband) appeals in pro. per. from a marital dissolution judgment. He challenges the courts ruling that all interests in copyrights or copyright termination rights held by Laura Siegel Larson (wife) are her separate property, and that the community acquired no interest in that property. This ruling was proper, and Court affirm the judgment.

Defendant Michael Shante Pitts appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of possession of a firearm by a felon (Pen. Code, 12021, subd. (a),[1]count 1), possession of ammunition ( 12316, subd. (b)(1), count 2), possession for sale of a controlled substance (Health & Saf. Code, 11378, count 4) and possession of marijuana for sale (id., 11359, count 5). The jury found the criminal street gang enhancement pursuant to section 186.22, subdivision (b)(1)(A), true as to counts 1, 4, and 5. As to count 4, the jury found the firearm enhancement pursuant to section 12022, subdivision (c), to be true, and as to count 5, the jury found the firearm enhancement pursuant to section 12022, subdivision (a)(1), to be true.
Defendant was sentenced to a total term of five years in state prison, consisting of two years on count 1, plus three years for the section 186.22, subdivision (b)(1)(A), criminal street gang enhancement. The trial court ordered the remaining terms to run concurrently. The trial court imposed a $20 court security fee ( 1465.8, subd. (a)(1)), a $50 laboratory analysis fee (Health & Saf. Code, 11372.5), and a $200 restitution fine ( 1202.4, subd. (b)). It also imposed and suspended a $200 parole revocation fine ( 1202.45, subd. (b)). On appeal, defendant contends the trial court erred in refusing to hold a hearing on his motion to suppress evidence, there was insufficient evidence to support the criminal street gang enhancement, and the prosecutor committed misconduct. The People contend there were sentencing errors relating to the fines imposed. We agree that the trial court should have held a hearing on defendants motion to suppress evidence, there was insufficient evidence to support the criminal street gang enhancement and there were sentencing errors relating to the fines imposed.

Sytha Tha Seang appeals from the judgment entered following his convictions by jury on count 1 shooting at an occupied motor vehicle (Pen. Code, 246), seven counts of assault with a semiautomatic firearm (Pen. Code, 245, subd. (b); counts 2 through 8 with personal use of a firearm (Pen. Code, 12022.5), seven counts of attempted willful, deliberate, and premeditated murder (Pen. Code, 664, 187; counts 9 through 15 with personal discharge of a firearm (Pen. Code, 12022.53, subds. (c) & (e)(1)); count 16 shooting at an unoccupied motor vehicle (Pen. Code, 247, subd. (b)); count 17 shooting from a motor vehicle (Pen. Code, 12034, subd. (c)); and count 18 shooting with gross negligence (Pen. Code, 246.3), with findings as to each offense that appellant committed it for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)). The court sentenced appellant to prison for 60 years plus seven consecutive terms of life with the possibility of parole, with a minimum parole eligibility term of 15 years as to each of counts 9 through 15. Appellant challenges the sufficiency of the evidence as to counts 9 through 15, and claims various trial and sentencing errors occurred. Court affirm the judgment.

Plaintiff Robert Baker appeals from an order denying his motion to vacate an arbitration award and granting the motion of defendants and respondents American Express Financial Advisors and Stanley Cohen (sometimes referred to collectively as American Express) to confirm the award. We find no basis to vacate the arbitration award which dismissed appellants claims in their entirety. American Express met its burden under Code of Civil Procedure section 1281.2 to show the existence of an agreement to arbitrate the controversy and did not waive its right to arbitrate. Appellant failed to meet his burden to show the existence of one of the grounds for vacating the award outlined in section 1286.2.
The judgment is affirmed.

Claimants Teresa Chavarin and Romy Acuesta appeal from an order directing return of real property to petitioner Joseph Chavarin, Special Administrator of the Estate of Adela Montenegro Chavarin. 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 $7,500 for Marys attorneys fees. Michael purports to appeal from the judgment and from a subsequent post-trial order, but his notice of appeal is untimely and leaves us with no choice but to dismiss this appeal.

Defendant and appellant Joseph Daniel Moore appeals from the judgment entered following a jury trial that resulted in his conviction for custodial possession of a weapon. Moore was sentenced to a prison term of 14 years. Moore contends: (1) the trial court erred by failing to order a second competency hearing; and (2) imposition of an upper term sentence violated his right to jury trial (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S.[166 L.Ed.2d 856, 127 S.Ct. 856].) He also requests that this court review the sealed record of the trial courts Pitchess[1]examination to determine whether the trial court abused its discretion by failing to order disclosure. In his petition for a writ of habeas corpus, which we consider concurrently with his direct appeal, Moore asserts a variety of claims. Discerning no reversible error, Court affirm the judgment and deny the writ petition.

Plaintiffs Robert Mayman, as trustee of the Maple Whitworth Trust, and Maple Whitworth, Inc., appeal from the judgment following a bench trial. Mayman contends that the trial court abused its discretion in awarding attorney fees against him as an individual under the lis pendens statute and erred in entering judgment against him. Court affirm.

Defendant and appellant Manuel C. Banos appeals from his conviction of second degree murder of Mary Cortez and first degree burglary. He contends the trial court erred in admitting into evidence statements Cortez made to police regarding acts of domestic violence committed by defendant against her. Court affirm.

Court affirm appellant Sergio Contrerass convictions for vandalism and disobeying a court order. However, Court reduce the vandalism conviction from a felony to a misdemeanor. Court remand the case to the trial court to resentence Contreras.

Defendant Craig Huxley appeals from an order granting the motion of plaintiff judgment creditor General Electric Capital Corporation (GECC) for assignment of royalties. Huxley contends that the motion was erroneously granted. Court affirm.

Sierra Club, Center for Biological Diversity, Friends of the Santa Clara River, and California Water Impact Network (collectively Petitioners) challenge the certification by City of Santa Clarita (city) of an environmental impact report (EIR) and the citys approval of a mixed-use development project known as Riverpark. Petitioners appeal a judgment denying their petition for a writ of mandate and denying relief on their complaint. They challenge the adequacy of the EIR and the citys findings under the California Environmental Quality Act (CEQA) (Pub. Resources Code, 21000 et seq.) with respect to impacts on water supply and biological resources, and the citys finding under the Planning and Zoning Law (Gov. Code, 65000 et seq.) that the project is consistent with the citys general plan.
Court conclude that the water supply analysis in the EIR, the analysis of impacts on the holly-leaf cherry and San Diego black-tailed jackrabbit, and the discussion of measures to mitigate the impacts on the western spadefoot toad were adequate, and that the city reasonably concluded that the project is consistent with the citys general plan. Court therefore affirm the judgment.

Defendant and appellant Rusnak Daimler Chrysler Center, Inc. (Rusnak Chrysler) appeals following a grant of summary adjudication and award of attorneys fees in favor of plaintiff and respondent Chrysler Realty Company, LLC (Chrysler Realty). The trial court ruled that Chrysler Realty was entitled to summary adjudication on its cause of action seeking specific performance of an option agreement. Court reverse. Chrysler Realty failed to meet its burden to establish that there was no triable issue of material fact as to whether the right to exercise the option was triggered.