CA Unpub Decisions

The plaintiffs in this case are concert promoter Howard Pollack, dba PM Group, and two subpromoters, Achilles Sojo dba AKE Music and Richard Leon Velarde dba Boulevard CIE. The defendants are singer Rod Stewart, his company Stewart Annoyances, Ltd., his manager Annie Challis of Stiefel Entertainment, his attorney Barry Tyerman of the then Armstrong Hirsch Jackoway Tyerman & Wertheimer (AH), and his agent Steve Levine of International Creative Management (ICM). Court conclude the failure of the parties to enter into a contract for the proposed concert tour precluded performance of the subcontracts. Thus, the defendants, as a matter of law, did not interfere with the performance of the subcontracts. Additionally, Stewart and his representatives cannot interfere with subcontracts that contemplate concert performances by Stewart. Accordingly, Court reverse the judgment on the cause of action for intentional interference with contract. In all other respects, the judgment is affirmed.

Plaintiff SPM, Inc. appeals from an order granting special motions to strike pursuant to the anti-SLAPP statute (Code Civ. Proc., 425.16). Defendants are Ashik Patel, Bharat Patel, Purushottam Patel and PBA, LLC (Patel Parties); Corbett & Steelman, a law firm, Ken Steelman and Mark Monachino (Corbett Parties); Jeffer, Mangels, Butler & Marmaro, a law firm, Paul Hamilton and Neil Erickson (Jeffer Parties); and Berger & Norton and Michael M. Berger (Berger Parties). Plaintiffs action for malicious prosecution arose out of a cross complaint filed by the Patel Parties in the underlying action. The other defendants represented the Patel Parties at some stage in the underlying action. Appellant contends the court erred in finding it did not establish a lack of probable cause, malice or damages in the underlying action. Court affirm.

This is a consolidated appeal by Adam Venit from post dissolution child support and litigation costs orders in favor of his former spouse Jami Abell Venit entered by Judge Marjorie Steinberg. First, Adam challenges the July 15, 2005 denial of his application to modify a November 8, 2002 child support order to reduce his child support payments for his two children from $26,971 per month, which he was ordered to pay pursuant to the statewide uniform child support guideline formula set forth in Family Code[2] sections 4050 et seq., to $12,000. Second, Adam challenges that portion of the July 15, 2005 order which increased his child support payments to $31,603 per month pursuant to the statutory guideline support formula based on his annual income of $4,082,424. Third, Adam also appeals from an August 22, 2005 order directing him to pay $246,268.54 of litigation costs to Jami in connection with the July 15, 2005 order, among other things. Under the applicable standards of review Judge Steinberg did not abuse her discretion in: denying the request to reduce the support order from $26,971; increasing the amount of monthly support to $31,603 based on the escalation in Adams annual income from $3.6 million in 2002 to $4,082,424 in 2005; and ordering Adam to pay most of Jamis litigation costs.
The order denying the request to reduce child support and directing a modification of child support to increase the amount of monthly support is affirmed.

Isaac Gabriel and Mounira Gabriel (collectively the Gabriels) appeal from two post-judgment orders concerning the execution of duties by a court appointed receiver to tear down a structure on the Gabriels property in Temple City. Notwithstanding the fact the judgment which declared the structure a public nuisance was affirmed on appeal, the Gabriels use this appeal to attack the validity of the underlying judgment. This appeal cannot be sustained for a number of reasons. The Gabriels briefs are deficient they lack appropriate citation to the record and a statement of appealability. In addition, the appeal from one of the orders is untimely. But even if Court overlooked the defects in the briefs and considered the timely filed appeal from the second order, Court reject the appeal. The Gabriels fail to assert any pertinent legal argument relating to the order from which they timely appeal and their claims with respect to the underlying judgment are not properly before this court. Consequently, this appeal is dismissed.

Plaintiff and cross defendant, Federated Mutual Insurance Company, appeals after summary judgment in an insurance coverage action was entered in favor of defendant and cross complainant, National Union Fire Insurance Company of Pittsburgh, Pa. Plaintiff insured Accurate Forklift (the forklift company). Defendant insured Kendall Jackson La Crema Winery (the winery). Summary judgment was entered after the parties filed cross summary judgment motions. Court agree with plaintiff that: defendants insured, the winery, had a duty to procure adequate public liability insurance against bodily injury; the winery had a contractual duty to have the forklift company named as an insured under the policy; the winery complied with its duty to procure adequate public liability insurance against bodily injury and have the forklift company named as an insured under defendants policy; the accident which gave rise to the underlying lawsuit is an occurrence within the meaning of defendants policy and the additional insured endorsement; and there is thus a triable issue as to whether the forklift company qualifies as an additional insured under an endorsement attached to defendants policy. Hence, we reverse the order granting defendants summary judgment motion. Because Court reverse the judgment, Court need not address the parties prejudgment interest contentions.

Defendant and appellant appeals from a judgment after a jury trial in which he was convicted of several offenses arising out of two separate robberies of the same victim. On appeal, defendant contends the prosecutor committed misconduct by eliciting testimony previously ruled inadmissible regarding defendants prior crimes. While we question the propriety of the prosecutors questioning of the witness given the trial courts ruling excluding the evidence, Court conclude any error was harmless in light of the overwhelming evidence against defendant. Defendant next contends the evidence was insufficient to support his conviction of one count of criminal threats. As there is no evidence that defendants threat to burn down the victims house was a threat to commit a crime resulting in death or great bodily injury, Court agree and reverse the judgment of conviction with respect to this count. Additionally, defendant contends the evidence was insufficient to support one of his eight prior prison term enhancements; the prosecution concedes the error. Finally, defendant contends he was awarded insufficient presentence credit. As defendant stipulated to the amount of credit at trial, and has failed to meet his burden of establishing any error, Court find no merit to the contention. In sum, Court reverse the judgment of conviction with respect to one count of criminal threats and strike one prior prison term enhancement. In all other respects, Court affirm.

Defendant appeals his convictions for possession of a billy club and possession of a short barreled shotgun. (Pen. Code, 12020, subd. (a)(1).) He claims instructional error and insufficient evidence to support either conviction. Court affirm.

Christopher Edwards appeals from his conviction for willful, premeditated and deliberate attempted murder. On appeal he claims the court gave legally inadequate jury instructions CALCRIM Nos. 226 and 315, concerning eyewitness identification issues. Edwards also asserts his counsel was ineffective for failing to challenge these instructions, or offer expert testimony concerning eyewitness identification issues and for failing to challenge the show up identification. Finally he asserts the prosecutor committed misconduct and committed Doyle error when she asked a question at trial which elicited the fact Edwards had requested counsel during his police interview. As we shall explain, none of these claims resulted in prejudicial, reversible error. Both CALCRIM Nos. 226 and 315 adequately convey the matters for the jury to weigh when considering eyewitness identification evidence. In addition, Edwards has not demonstrated his counsel was ineffective in failing to offer an identification expert or challenge the out of court identification. Finally, he has not demonstrated prejudicial Doyle error. Accordingly, Court affirm.

A jury convicted appellant of four counts of identity theft (Pen. Code, 530.5, subd. (a)), four counts of making a false financial statement ( 532a, subd. (1)) and four counts of grand theft ( 487, subd. (a)). The trial court sentenced him to two years and eight months in state prison.
Appellants sole contention centers on the trial courts decision to permit the prosecution to elicit, for purposes of impeachment, testimony from him about his misdemeanor conduct of inflicting corporal injury on a cohabitant (Phyllis Valencia) in violation of section 273.5. Appellant claims that, pursuant to Evidence Code section 352, the trial court should have excluded the evidence as being unduly prejudicial. He argues that the admission of the evidence resulted in a miscarriage of justice, requiring reversal. Court are not persuaded. Court conclude that appellants contention has not been sufficiently preserved for appeal by a timely and specific objection on the record; that even if the objection was preserved, the trial court did not abuse its discretion in admitting evidence of appellants misdemeanor conduct; and that if any error occurred, it was harmless. Therefore, Court affirm the judgment.

Defendant appeals his conviction, by jury, of the attempted premeditated and deliberate murder of Adonis Towles (Pen. Code, 187, subd. (a), 664), kidnapping to commit robbery ( 209, subd. (b)(1)), kidnapping ( 207, subd. (a)), second degree robbery ( 211), and shooting at an occupied motor vehicle. ( 246.) The jury further found that a principal personally and intentionally discharged a firearm causing great bodily injury ( 12022.53, subd. (b)-(e)) and that each offense was committed for the benefit of a criminal street gang. ( 186.22, subd. (b)(1).) On the attempted murder and kidnapping for robbery convictions, the trial court sentenced appellant to consecutive terms of life with the possibility of parole. It imposed one term of 25 years to life for the firearm use enhancement. ( 12022.53, subd. (b)-(e).) Another 10-year enhancement term was imposed and stayed. The trial court imposed consecutive determinate terms of 5 years for the kidnapping (count 3) and 1 year for the robbery (count 4), plus gang enhancements of 10 years for each offense. The sentence imposed for shooting at an occupied motor vehicle was stayed pursuant to section 654. Appellant was ordered to pay a restitution fine of $800 and awarded 949 days of presentence custody credit.
Appellant contends the judgment must be reversed because several prejudicial errors occurred. First, the trial court denied his Batson/Wheeler motion after the prosecutor exercised a peremptory challenge to excuse an African-American woman from the jury. Second, the trial court denied his motion for a new trial after jurors expressed a fear of gang retaliation, depriving appellant of his right to trial before an impartial jury. Third, the trial court excluded the testimony of an expert on eyewitness identification. Appellant further contends that the gang enhancements are not supported by substantial evidence, that his conviction of simple kidnapping (count 3) must be reversed because it is a lesser and necessarily included offense of the aggravated kidnapping of which he was also convicted (count 2), that his sentence for robbery should be stayed pursuant to section 654, and that the consecutive terms for simple kidnapping and robbery were incorrectly calculated. Respondent requests that we modify the abstract of judgment to reflect the restitution fines the trial court imposed and to impose the parole revocation fines it omitted.
Court reverse appellant's conviction of simple kidnapping (count 3) because that offense is a lesser and necessarily included offense of aggravated kidnapping. Court modify the judgment to a determinate aggregate term of 13 years, plus 2 consecutive indeterminate terms, each consecutive to each other. Court also modify the amount of the restitution and parole revocation fines. As so modified, Court affirm the judgment.

Defendant appeals from a judgment after a jury trial in which he was convicted of possession for sale of cocaine base (Health & Saf. Code, 11351.5) and battery on a peace officer (Pen. Code, 243, subd. (c)(2)). At defendants arrest, he was in possession of several different bindles of cocaine base, yet he was charged with a single count of possession for sale. Defendant contends that the trial court therefore erred in failing to instruct the jury sua sponte on unanimity in the language of CALJIC No. 17.01. Court disagree and affirm.

Defendant, appeals from the judgment following the granting of a motion for summary judgment in favor of plaintiff and respondent, Ray Meline (Meline). Meline is the owner of an apartment building. Dadson purports to have a leasehold estate in the apartment building to operate a coin operated laundry business having its initial source in a written 1983 lease agreement, recorded in the office of the county recorder for Los Angeles County. Dadsons current claim of entitlement to a leasehold estate has its source in a 1995 unrecorded written lease of the premises, in existence when Meline purchased the property on December 21, 1998. Meline deemed it to his advantage to terminate Dadsons leasehold estate and gave notice of termination in accordance with the 1983 leasehold agreement, which Meline maintains would terminate Dadsons leasehold as of September 10, 2005. Dadsons claim of entitlement is based on the theory that Meline was obligated to discover the unrecorded written lease dated in 1995 and terminate the tenancy therewith, relying on the doctrine that an unrecorded lease is binding upon a party who has actual or constructive notice of the lease, and Meline having failed to give such notice, Dadson is entitled to occupy the premises under the 1995 lease until the year 2025. The trial court entered summary judgment for Meline following the filing of his complaint for declaratory relief. For the reasons hereafter given, Court reverse the judgment.

Following the denial of his motion to suppress illegally seized evidence, Clever Sim pleaded no contest to one count of possession of a firearm by a felon and was sentenced to two years in state prison. On appeal, Sim contends the evidence seized during a warrantless search of his backpack was the fruit of an illegal detention and should have been suppressed. Court affirm.

Defendant appeals from an order recommitting him to the California Department of Mental Health for treatment after the trial court determined that he was a mentally disordered offender. (MDO; Pen. Code, 2962 et seq.) Appellant claims that the evidence does not support the finding that he represents a substantial danger of physical harm to others due to his mental disorder. ( 2972, subd. (c).) Court affirm.