CA Unpub Decisions

An attorney filed a collection action against former clients. The clients asserted an affirmative defense and a cross-claim of fraud, alleging the attorney misrepresented his level of experience and expertise in real estate litigation involving property line disputes and engaged in fraudulent billing practices, which caused them substantial financial and emotional injury. A jury found the attorney committed fraud, but awarded no damages to the clients. The trial court denied the clients motion for a new trial on damages, as well as the attorneys motion for judgment notwithstanding the verdict on the contract claim. The court also denied the clients requests for attorney fees and costs on the ground neither party prevailed.
Court conclude the clients are entitled to a limited retrial on damages and, as prevailing parties, to an award of reasonable attorney fees and costs. Court also conclude the trial court did not err in excluding certain expert witness testimony, nor in denying the attorneys motion for judgment notwithstanding the verdict.

Appellant was convicted of one count of attempted premeditated murder (count 1), three counts of assault with a firearm (counts 2, 3, and 4), one count of shooting at an occupied motor vehicle (count 6), and related allegations. He was sentenced to an indeterminate term of 40 years to life on count 1, consecutive to a determinate term of 33 years on counts 2, 3, and 4. He argues, and respondent concedes, that count 6 must be stricken due to the statute of limitations. Appellant and respondent further agree that there are problems with the length of the street gang enhancements that were imposed on counts 3 and 4. The only disputed issue is the effect of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856](Cunningham) on imposition of the upper term on count 2.
Court strike count 6, modify the sentence on the gang enhancements on counts 3 and 4, and otherwise affirm.

Defendant appeals from the judgment following his jury trial and conviction of transportation of cocaine for sale between noncontiguous counties, possession of cocaine for sale, and misdemeanor destruction of evidence. (Health & Saf. Code, 11352, subd. (b), 11351; Pen. Code, 135.) The court suspended the pronouncement of judgment and granted appellant three years' probation on terms and conditions, including serving 120 days in county jail. Appellant contends that the trial court committed instructional error. Court affirm.

Plaintiffs sued American International Group and its subsidiary Granite State Insurance Company for damages arising out of Granites termination of SoftExs workers compensation insurance policy. The trial court sustained a demurrer to Zabaskys cause of action for intentional infliction of emotional distress and granted defendants motion for summary judgment on SoftExs causes of action for breach of contract and interference with economic advantage. Plaintiffs appeal from the judgment. Court affirm.

Defendant appeals the judgment entered following his conviction by jury of four counts of robbery in which Batchelor personally used a dangerous or deadly weapon and a principal was armed with a firearm. (Pen. Code, 211, 12022, subds. (a)(1) and (b)(1).) Batchelor admitted a prior conviction of residential burglary in Florida in 1981 within the meaning of the Three Strikes law ( 1170.12, 667, subds. (b) - (i)) and section 667, subdivision (a)(1). The trial court sentenced Batchelor to a prison term of 22 years. Court reject Batchelors claim of sentencing error and affirm the judgment.

Defendant appeals the judgment entered following his conviction by jury of two counts of forcible lewd act upon a child under the age of 14 years, one count of lewd act upon a child under the age of 14 years and one count of making a criminal threat. (Pen. Code, 288, subd. (b)(1), 288, subd. (a), 422.) The jury found that, in the commission of each count of lewd act, Spencer committed an offense specified in section 667.61, subdivision (c), against more than one victim, thereby triggering the provisions of the One Strike law. The trial court found Spencer had three prior convictions within the meaning of the Three Strikes law ( 667, subs. (b)-(i), 1170.12) and section 667, subdivision (a)(1), and sentenced Spencer to four consecutive life terms with a mandatory minimum term before parole eligibility of 265 years.
In this appeal, Spencer claims three of his four convictions are not supported by sufficient evidence and admission of propensity evidence under Evidence Code section 1108 violated his right to a fair trial. Court reject these contentions and affirm the judgment.

Defendant appeals the judgment entered following his conviction by jury of first degree burglary and inflicting corporal injury upon a spouse or cohabitant. (Pen. Code, 459, 273.5, subd. (a).) The trial court sentenced Farlough to a prison term of four years. Court reject Farloughs claim the evidence was insufficient to support his conviction of burglary and affirm the judgment.

Defendant appeals from the judgment, by jury, extending his commitment to Atascadero State Hospital (ASH) as a mentally disordered offender (MDO) within the meaning of Penal Code section 2970. He contends the evidence is insufficient to prove that "by reason of his . . . severe mental disorder, [he] represents a substantial danger of physical harm to others . . . ." ( 2972, subd. (c).) He further contends the trial court erred because it failed to instruct the jury that his MDO commitment could be extended only if his severe mental disorder caused him to experience serious difficulty in controlling his behavior. Court affirm.

The District Attorney of Los Angeles County filed an information charging defendant and appellant Michael Dwayne Miller (defendant) with assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and battery with serious bodily injury ( 243, subd. (d)). The information also alleged that in committing the assault with a deadly weapon defendant personally inflicted great bodily injury on the victim. ( 12022.7, subd. (a).) Defendant pleaded not guilty.
We appointed counsel to represent defendant in this appeal. After examining the record, counsel filed an opening brief asking this court to independently review the record in accordance with People v. Wende (1979) 25 Cal.3d 436. On January 3, 2007, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. Defendant did not submit a brief or letter. Court reviewed the record and informed the parties that it appeared that the trial court erred in its calculation of defendants presentence credit. Court requested briefing from the parties on this issue. Court affirm the judgment of conviction, but order the abstract of judgment modified to reflect that defendant has been awarded a total of 248 days of presentence credit consisting of 166 days of actual custody credit and 82 days of conduct credit.

Defendant entered into a plea agreement pursuant to which he pleaded nolo contendere to one count of battery. His appeal purports to challenge the validity of the plea. His appointed counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 requesting this court to conduct an independent review of the record to determine if there are any arguable issues on appeal. After reviewing the record, Court affirm the judgment.

LaTanya P. (mother) and Eddie H. (father) appeal the trial court's denial of mother's Welfare and Institutions Code section 388 petition and the termination of parental rights to their daughter D.P. D.P. also appealed the latter ruling. Finding no error, Court affirm.

Defendant appeals from the judgment entered following his negotiated guilty plea to one count of failing to update annually his registration as a sex offender. Court order correction of the abstract of judgment, and as amended affirm the judgment.

Following a contested jurisdiction hearing, the Sacramento County Juvenile Court found that minor A.A. was within the provisions of Welfare and Institutions Code section 602 in that he had committed two counts of carjacking (Pen. Code, 215; further undesignated statutory references are to the Penal Code; counts one & two), two counts of robbery ( 211; counts three & four), and two counts of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); counts five & six). The minor was adjudged a ward of the juvenile court and committed to the Sacramento County Boys Ranch under the supervision of the probation department. On appeal, the minor contends the evidence supporting the juvenile courts determination is insufficient as a matter of law. Court affirm the judgment.

Plaintiffs appeal the trial courts orders granting the two motions to quash (Code Civ. Proc., 418.10, subd. (a)(1)) brought by Blue Lake Housing Authority (Blue Lake) and by Blue Lake as successor in interest to J & L Properties on the grounds of tribal sovereign immunity. Plaintiffs contend the trial court erred in extending tribal sovereign immunity to activities involving a non-tribal construction company constructing non-tribal housing for sale on non tribal land and by failing to find the sales contract effected an express waiver of any sovereign immunity. Court affirm the order granting the motions to quash.