CA Unpub Decisions

Susan Chen sued Signe Quale Kennedy and Wesley Kennedy for injuries she allegedly suffered in a minor traffic accident. The Kennedys served Chen with an offer to compromise pursuant to Code of Civil Procedure section 998, but Chen did not respond. After the Kennedys prevailed at trial, they were awarded $12,356.90 in costs, including expert witness fees. On appeal from the postjudgment order of costs, Chen contends the court erred in awarding expert witness fees and other costs. Court affirm.

Norman La Caze sued Daniel Selleck and Selleck Development Group, Inc. (SDG) for breach of contract, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, unfair competition (Bus. and Prof. Code, S 17200), an accounting, and a constructive trust. The trial court granted summary judgment in favor of Selleck and SDG. La Caze contends on appeal that the trial court should not have summarily adjudicated his causes of action for breach of fiduciary duty, unfair competition, accounting, and constructive trust. Court affirm.

Pursuant to a plea agreement following the denial of his motion to suppress evidence, Hamid P. admitted he had unlawfully possessed a weapon on school grounds (Pen. Code, S 626.10, subd. (a)) and was declared a ward of the juvenile court (Welf. and Inst. Code, S 602) and placed home on probation subject to various terms and conditions. On appeal Hamid contends the weapon (described in the delinquency petition as a "box cutter razor blade") was obtained by an illegal detention and search (Welf. and Inst. Code, S 700.1). He also asserts his counsel provided ineffective assistance in permitting him to admit the weapon charge, one of his probation conditions is unconstitutional and two others should be modified to conform to the oral pronouncement of disposition. Court affirm the order as modified.

Defendant appeals from the judgment entered after a jury convicted him on multiple counts of inflicting corporal injury, aggravated assault, kidnapping and making criminal threats arising from three incidents of domestic abuse against Milagro Ferman. Defendant contends the trial court committed prejudicial error by limiting Ferman's cross-examination and by allowing the People to amend the information during trial to add the charge of assault by means of force likely to produce great bodily injury. Court affirm.

In a one count information, appellant Robert Anthony Perea and co defendant Alfred Gonzales were charged with murder (Pen. Code S 187, subd.(a)). It was further alleged that appellant and Gonzales committed the offense for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist the gang (S 186.22, subd. (b)(1)). Specifically with respect to appellant, the information alleged that he personally discharged a firearm (S 12022.53, subd. (c) and (e)(1)), personally used a firearm (S 12022.53, subd. (b) and (e)(1)), had a prior strike conviction (S 1170.12, subd. (a) (d), S 667, subd. (b) (i)), had a prior serious felony conviction (S 667, subd. (a)(1)), and had two prior convictions and prison terms (S 667.5, subd. (b)).
The jury found appellant guilty of second degree murder and found the gang enhancement and firearm allegations true. The trial court found the prior conviction allegations true and denied appellant's motion to strike a strike. The court sentenced appellant to 30 years (15 years to life, doubled) for the murder and 25 years to life for the gun use allegation, plus an additional five years under section 667, subdivision (a) for the prior conviction. Gonzales was found not guilty.

Sharon Bronson Duncan, her former husband Steve Duncan and their children appeal from the judgment entered after the trial court granted summary judgment in favor of AmeriSpec Home Inspection Services, Cal Pacific Home Inspection Services and Jeff Schrage (collectively AmeriSpec) in this negligence action. Because triable issues of material fact exist as to whether AmeriSpec breached its statutory duty of care as a home inspector, court reverse.

Eric Grace, John Rotondo and nominal defendant Pacific Imaging, LLC appeal from an order denying their petition to compel arbitration in this derivative action brought by Arthur Oviedo on behalf of Pacific Imaging. Court reverse.

Plaintiffs appealed and Chrysler cross-appealed. Chrysler contends that the court erred in finding that plaintiffs (I) made a reasonable attempt to settle the dispute before litigation, (II) filed a lawsuit with merit, and (III) were entitled to a 2.0 multiplier for fees on fees for the work done in the original trial court proceeding. Plaintiffs contend (IV) that the court erred in not awarding them attorney fees for their appeals.
Court reject contentions (I) and (II), agreeing with plaintiffs and the trial court that plaintiffs successfully proved the two new elements of the catalyst theory entitling them to attorney fees. Regarding contention (III), court conclude that the court abused its discretion in selecting the multiplier on the fees for fees by relying in part on plaintiffs' appellate work and results. Regarding contention (IV), court conclude the trial court erred in finding that it did not have authority to determine attorney fees on appeal. Court reverse those portions of the order setting the 2.0 multiplier and denying plaintiffs appellate attorney fees and remand for further proceedings consistent with this opinion. In all other respects court affirm the judgment.

A jury convicted defendant of second degree murder (Pen. Code, SS 187, 189) and found true firearm use allegations (SS 12022.5, subd. (a), 12022.53, subd. (d)). Defendant was sentenced to state prison for 40 years to life, consisting of 15 years to life for the murder and 25 years to life for the section 12022.53, subdivision (d) firearm use.
On appeal, defendant contends the trial court erred when it failed to instruct the jury, sua sponte, that (1) "voluntary manslaughter includes cases in which express malice is found not to be present due to intoxication and implied malice is found not to be present for another reason," and (2) involuntary manslaughter may be committed on the theory of voluntary intoxication. Court reject both contentions.

A jury convicted defendant of one count of car burglary (Pen. Code, S 459; unspecified section references that follow are to the Penal Code) and two counts of receiving stolen property (S 496, subd. (a)). The jury was unable to reach a verdict on a third charge of receiving stolen property and that count was subsequently dismissed. The trial court found a charged prior felony conviction to be true, and sentenced defendant to an aggregate prison term of four years.
On appeal, defendant contends (1) there is insufficient evidence to support his convictions and (2) the prosecutor engaged in misconduct in closing argument. Neither claim has merit, and court therefore affirm the judgment.

A modification decision.

A modification decision.

Ann Seymour filed a second amended complaint against John and Kathy Fitzsimmons (collectively Fitzsimmons), the John R. Fitzsimmons Trust, and Heritage Operating LP (Heritage). In her second amended complaint, Seymour brought a negligence claim and a wrongful death claim against Heritage based on Heritage's alleged failure to properly inspect several gas appliances in premises Seymour rented from Fitzsimmons. Seymour alleged that Heritage negligently failed to discover that the kitchen stove in the premises was leaking carbon monoxide, and that the carbon monoxide caused her to suffer severe personal injuries and also caused her mother's death.
Court conclude that the trial court properly sustained Heritage's demurrer without leave to amend. In addition, court conclude that the trial court did not abuse its discretion in denying Seymour's motion for reconsideration or in granting Heritage's motion for sanctions. Accordingly, court affirm the judgment and affirm the trial court's order denying Seymour's motion for reconsideration and granting Heritage's motion for sanctions.

Defendant appeals the judgment confirming an arbitration award in favor of plaintiff and an order granting her attorney fees as the prevailing party under Civil Code section 1717. Villasenor contends the court erred by denying her petition to vacate the arbitration award on the grounds it exceeds the arbitrator's powers and was obtained by fraud, and the attorney fees award lacks evidentiary support. Court affirm the judgment and the order and remand the matter to the trial court for its determination of the amount of Hernandez's attorney fees on appeal.