CA Unpub Decisions

Martin Humberto Aguilar appeals from the judgment entered following his conviction by jury for committing grand theft. He contends the prosecutor committed prejudicial misconduct during closing argument. Court affirm.

An employer appeals from orders denying its petitions to compel arbitration of two class action lawsuits filed by its employees, alleging Labor Code and Unfair Competition Law violations. The employer unsuccessfully sought arbitration of these disputes in accordance with provisions in various agreements that subject such claims to individual binding arbitration and prohibit proceedings on a class or representative basis. Court affirm.

Keith Lamar Johnson appeals from the judgment entered following his conviction by a jury on one count of attempted voluntary manslaughter, a lesser included offense of the charged crime of attempted murder (Pen. Code, 664, 192, subd. (a)),[1]and one count of assault with a firearm ( 245, subd. (a)(2)) with special findings by the jury he was armed with and personally used a firearm in committing both offenses ( 12022, subd. (a)(1), 12022.5, subds. (a), (d)) and had personally inflicted great bodily injury on a person other than an accomplice during the assault ( 12022.7, subd. (a)). Johnson argues the trial court improperly imposed a three-year enhancement for inflicting great bodily injury on the assault count because the People failed to allege the enhancement in its accusatory pleading. He also argues the trial courts imposition of upper term sentences based on its own factual findings concerning aggravating circumstances violated his right to a jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Because Court conclude the trial court used an improper aggravating circumstance to select the upper terms, Court remand for resentencing without reaching the constitutional issue raised. In all other respects, Court affirm.

In Sedaghat v. Gourde (Dec. 15, 2003, B161734) (nonpub. opn.) this court affirmed the trial courts order granting a special motion to strike filed by Thomas L. Gourde and Gourdes law firm, Ford, Walker, Haggerty & Behar, pursuant to Code of Civil Procedure section 425.16, and dismissing various tort claims asserted by Allen Sedaghat and Jamie Mahjobi against Gourde and the law firm in connection with their representation of Dr. William Hang in a dental malpractice action. Court remanded the matter to the trial court to determine the amount of attorney fees and costs on appeal to be awarded to Gourde and the firm.

Objectors Claudia Moreno and Michelle Medrano appeal from the judgment approving the class action settlement between plaintiffs Edgar Martinez, Ronald Carrillo and Edwin Cano and defendant AutoZone, Inc. Objectors contend that safeguards to protect absent class members like themselves failed as the judgment released AutoZone from claims that were never pled, never referenced in the proposed stipulation of settlement or included in the notice sent to absent class members. Objectors further contend the settlement approved by the court was inadequate, unreasonable and unfair in that the court did not analyze the required factors for approving a settlement and, in particular, did not receive adequate information. Court reverse and remand with directions to enter a judgment conforming to the settlement.

An information charged Shantic Price in count I with attempted willful, deliberate, premeditated murder, in count II with shooting at an occupied vehicle, and in count III with assault with a semiautomatic firearm. The information included special allegations for personal use and discharge of a firearm, personal infliction of great bodily injury, three prior serious or violent felonies, and two prior prison terms. The jury convicted Price on counts II and III, but deadlocked on count I, and the court declared a mistrial on count I. Following Prices jury waiver, the court found the prior conviction allegations to be true. The court sentenced Price to 52 years to life. Price, who filed a timely notice of appeal, contends the court erred by allowing him to be impeached with a prior conviction without sanitizing it, he received ineffective assistance of counsel because his counsel did not object to instructions about viewing oral admissions with caution, and the prosecutor committed misconduct by distorting evidence and arguing facts not in evidence. Court affirm.

This case is one of several resulting from an incident in February 1991, when William Penuela (William) was arrested by a City of Glendale police officer during a psychotic episode. He received no treatment for his mental illness during the two weeks he was in custody in Glendale and Los Angeles. Criminal charges were dismissed for lack of probable cause, and William was released from jail in the middle of the night, while delusional and hallucinating. Just three hours later, he walked in front of an Amtrak train and was struck by it. He suffered serious injury, including amputation of his right lower leg, brain damage, and worsened schizophrenia. This is an appeal from the denial of a special motion to strike under Code of Civil Procedure section 425.16. Court reverse the order.

This action arises from a dispute between a brother and sister as to the ownership of real property located in Venice, California. Plaintiff and appellant Ismael Perez appeals from the summary judgment entered in favor of his sister, defendant and respondent Maria Ferguson, on Perezs first amended complaint (FAC) for quiet title and related causes of action. Perez contends the trial court erred in finding no triable issues of material fact regarding the affirmative defenses of statute of limitations and statute of frauds. Court affirm.

This is an appeal from an order denying appellant Zina Brawer's motion for attorney fees incurred in a quiet title action. She sought the fees under Family Code section 2030, contending that the quiet title action was related to a family law action. Court affirm.

McMillan & Tkach contends the trial court erred by imposing the wrong legal standard. As it reads the record, the court ruled that a suit for fees may not succeed unless the plaintiff produces documentary evidence. Court do not so read the record. In our view, the court simply considered the evidence presented, which consisted of oral testimony and documents, and found that McMillan & Tkach had not proved its case. There was no error.

The minor, Bryan A., appeals after he admitted that he possessed a controlled substance. (Health & Saf. Code, 11377, subd. (a).) The minor committed the offense on February 26, 2006, when he was 16 years of age. On September 19, 2006, the juvenile court ordered entry of judgment deferred pending completion of the terms and conditions of probation pursuant to Welfare and Institutions Code section 790. On October 12, 2006, the minor filed a notice of appeal from the juvenile courts September 19, 2006 order. Court appointed counsel to represent the minor. Appointed appellate counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See Smith v. Robbins (2000) 528 U.S. 259, 277-284.) The appeal is dismissed.

Katherine M. appeals from two orders in the dependency proceedings regarding her daughter Kayla: an order denying her Welfare and Institution Code section 388 petition and an order terminating parental rights under section 366.26. Court affirm.

Plaintiff, Parkside Apartment Partners (Parkside), appeals from a judgment of the trial court dismissing its complaint against defendant, The Cadle Company II, Inc. (Cadle), in which Parkside sought to recoup a late charge paid to Cadle on a note. Cadle had imposed the late charge following Parksides default on the final payment of the note. Parkside claimed the late charge provision of the note applied only to interim installment payments and not the final payment. The trial court disagreed, concluding the late charge provision applied to all scheduled payments. Court conclude the language of the late charge provision, read in the context of the rest of the note, the conduct of the parties, and legal principles relating to penalty clauses, demonstrates it was not intended to apply to the final payment. Court therefore reverse the judgment.

Although the trial court found that plaintiff Donald R. Hamilton failed to sustain his burden of proving employment discrimination, it denied the motion of defendants Jim Holt and SST Oil, Inc. (collectively SST) for attorney fees. Finding no abuse of discretion, Court affirm.