Filed 4/25/19 Lyell v. Appellate Division of Superior Court CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

—-

MIRIAM T. LYELL,

Petitioner,

v.

THE APPELLATE DIVISION OF THE SUPERIOR COURT OF SAN JOAQUIN COUNTY,

Respondent;

THE PEOPLE et al.,

Real Parties in Interest.

C087782

(Super. Ct. No. STK-CR-MDUI-2018-0009314)

This petition for mandatory or prohibitory relief involves a disagreement about how to handle the appointment of counsel for indigent defendants, here specifically misdemeanor drunk driving (DUI) defendants. Although the underlying DUI case has been resolved, the case is not moot as it presents issues of public interest that are likely to recur but that would otherwise evade review. (See Simmons v. Superior Court (1988) 203 Cal.App.3d 71, 74-75.)

The Attorney General concedes the facts properly alleged in the petition, which shows a practice by the San Joaquin County Superior Court misdemeanor DUI arraignment court of not appointing counsel at the initial arraignment hearing. Instead, the arraignment is continued for two weeks to require that the defendants contact an attorney to determine if they can afford to pay counsel. When the defendants return at the continued arraignment, they must present an attorney’s business card and explain that they have inquired and are unable to afford counsel. At that point the court will ask the defendants to complete a financial declaration to determine whether to appoint the public defender.

In the specific underlying DUI case here, the defendant contacted the public defender after finding out through the local bar association that it would cost $30 for a consultation with an attorney, money defendant could not afford. The public defender appeared for defendant at the continued arraignment, but the trial court refused to recognize counsel’s authority to appear absent a court appointment. The Attorney General concedes the court erred when it refused to recognize the public defender, but generally defends the court’s practice of routinely continuing arraignments to require defendants to contact an attorney, citing the court’s broad discretion to determine indigency.

We hold that the practices described by the petition depart from governing legal principles and thereby impose an unnecessary burden on indigent defendants. Because the underlying case has been resolved we grant prospective relief only.

BACKGROUND

Because the Attorney General has conceded the facts properly alleged in the petition, we take those facts as true and need not address a few minor quibbles.

The petition described the practice of the San Joaquin County Superior Court misdemeanor DUI arraignment court in part as follows: “When the misdemeanor out-of-custody DUI arraignments begin, Judge Vlavianos typically after informing defendants being arraigned [of] their procedural rights, informs each of them that if he or she wanted to be represented by counsel, he or she would need to go consult with a private attorney and figure out whether he or she had enough money to retain the private attorney. Judge Vlavianos would then inform him or her that if he or she could not afford to retain the private attorney, he or she should bring back the private attorney’s business card and show it to Judge Vlavianos, before Judge Vlavianos would appoint the Public Defender. Judge Vlavianos would typically continue the matter for two weeks for that purpose, but he would not ask the defendant to enter a plea, or give the defendant an opportunity to withdraw time waiver under Penal Code section 1382. He also would not allow the defendant to fill out a financial declaration or determine based on the financial declaration whether the Public Defender should be appointed.” When a defendant returns on the next court date and does not have retained counsel, “Judge Vlavianos would ask him or her whether he or she has consulted with a private attorney, figured out that he or she could not afford to retain the private attorney, and returned with the attorney’s business card. Typically, only if the defendant did so, would Judge Vlavianos ask him or her to fill out a financial declaration to determine whether to appoint the Public Defender.”

In the underlying case, defendant L.Y. was charged with a misdemeanor DUI on July 27, 2018 (further dates are to 2018 unless otherwise specified). Supervising deputy public defender Denise Pereira was present in court during defendant’s August 6 arraignment hearing. A friend had helped transport defendant to court. Defendant became upset and told the trial court defendant did not know what to do. The court replied by “continuing [the] case for two weeks and telling [defendant] to go to the San Joaquin County Bar Association and pay to consult with a private attorney.” (Italics added.) The court did not ask if defendant wanted to enter a plea or to exercise defendant’s right to a speedy trial. After court, defendant went to the bar association’s referral service and learned that no lawyers were then available and that it would cost $30 for a consultation fee to consult with a lawyer, an amount that would place an “undue hardship” on defendant.

Defendant filed a writ petition in the appellate division on August 15 seeking relief similar to that sought in the instant petition before this court, but the petition was summarily denied by order two days later.

On August 17, defendant called Pereira, told her defendant could not arrange a ride to court, and asked Pereira to appear for her and ask for a continuance; Pereira agreed to appear for her on August 20, the continued arraignment date. On that date Pereira announced her appearance for defendant as requested, but the trial court “did not acknowledge Ms. Pereira as [L.Y.’s] counsel, refused to allow Ms. Pereira to appear for [L.Y.] pursuant to [Penal Code] section 977, and stated that the Public Defender has not been appointed on [L.Y.’s] case. He continued [L.Y.’s] case to August 27, 2018. He also issued a bench warrant against [L.Y.] in the amount of $20,000, but held the warrant until August 27.”

The instant petition was filed on August 22, brought in the name of Miriam T. Lyell, as “Public Defender,” technically seeking to overturn the appellate division’s summary denial of relief. It alleged the practice described reflected an abuse of discretion, did not comport with relevant statutes, violated various constitutional rights, and would cause prejudice in various ways to indigent defendants.

On August 29, the public defender advised this court that counsel had been appointed for defendant, so the case was technically moot, but asked that we reach the merits to address the validity of the trial court’s arraignment practices.

On September 28, we issued an order to show cause in part directing the parties to “address whether the policy and/or procedure described in the petition as being employed by San Joaquin Superior Court comports with Government Code sections 27706 and 27707, and whether it is consistent with Joshua P. v. Superior Court (2014) 226 Cal.App.4th 957, 963-965.”

On October 19, we received a second status letter advising us that defendant had entered into a plea agreement resolving the case.

The Attorney General filed a return and “partial demurrer” to the petition, but admitted all facts properly alleged in the petition. Although the return questions the public defender’s standing as a technical matter, it admits that “[t]he trial court’s failure to recognize the Public Defender as counsel for [L.Y.] on August 20, 2018 constitutes a basis for mandamus relief.” But the return contends the trial court’s “practices do not violate any statutory or constitutional rights of defendants and falls [sic] within the discretion afforded trial courts to determine indigency and to manage the courtroom.” The return argues the practice is “not outside the bounds of reason” and in part relies on the rule that a judge cannot be forced to exercise discretion in any particular way. The return also contends the petition’s various claims about how the described arraignment practices prejudice defendants are speculative.

DISCUSSION

Because the facts properly alleged in the petition have been admitted, we take it as true that (1) the trial court typically continues arraignments to require defendants to consult with a private attorney before making a determination of indigency and (2) when, as in the underlying case, a defendant contacts a public defender who tries to represent the defendant, the court typically refuses to recognize the existence of an attorney-client relationship. We address these two practices separately.

I

Not Recognizing the Public Defender

Government Code section 27706 provides in part: “The public defender shall perform the following duties: [¶] (a) Upon request of the defendant or upon order of the court, the public defender shall defend, without expense to the defendant, except as provided by Section 987.8 of the Penal Code, any person who is not financially able to employ counsel and who is charged with the commission of any contempt or offense triable in the superior courts at all stages of the proceedings . . . .” (Italics added.) Section 27707 provides in part: “The court in which the proceeding is pending may make the final determination in each case as to whether a defendant or person described in Section 27706 is financially able to employ counsel and qualifies for the services of the public defender. The public defender shall, however, render legal services as provided in subdivisions (a), (b) and (c) of Section 27706 for any person the public defender determines is not financially able to employ counsel until such time as a contrary determination is made by the court. If a contrary determination is made, the public defender thereafter may not render services for such person except in a proceeding to review the determination of that issue or in an unrelated proceeding.” (Italics added.) Thus, a public defender must represent a defendant the public defender finds to be indigent “until such time as” the trial court finds otherwise, and until then the court must recognize the public defender as counsel for the defendant. (See Joshua P. v. Superior Court (2014) 226 Cal.App.4th 965, 963-965; In re Brindle (1979) 91 Cal.App.3d 660, 681 [“the public defender ‘exercises an original power vested . . . by statute, not superior to but coequal with the power of the court’ to determine whether a person is entitled to be represented by the public defender”].) As stated, the Attorney General concedes this point warrants relief, and in light of the statutes quoted we agree.

II

Routinely Continuing Arraignments

The Attorney General defends the specified arraignment court’s practice of requiring defendants to consult with an attorney to discuss whether the defendant can afford the expected legal fees, and then return with an attorney’s business card. We reject the Attorney General’s view that because a public defender can always undertake (in the first instance) to represent someone, there is an adequate legal remedy barring writ relief. Under that view, only those indigent defendants knowledgeable enough to contact a public defender or lucky enough to be contacted by a public defender would obtain prompt counsel. We also reject the Attorney General’s view that this practice comports with legal principles under the rubric of the trial court’s discretion to determine indigency, or that granting relief would improperly compel the court to exercise its discretion in a certain way.

As we have emphasized before, discretion is delimited by the applicable legal standards, a departure from which constitutes an abuse thereof. (See Estates of Collins & Flowers (2012) 205 Cal.App.4th 1238, 1247; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298.) Put another way, “The discretion conferred upon the court ‘is a discretion, governed by legal rules, to do justice according to law or to the analogies of the law, as near as may be.’ [Citation.] That is to say, the range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted.” (County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778.) Discretion must “be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Bailey v. Taaffe (1866) 29 Cal. 422, 424.)

We do not see how the described practice advances the spirit of the laws regarding arraignments and an indigent defendant’s right to the prompt appointment of counsel.

We have said that: “This statutory standard [for determining indigency] is necessarily a flexible one and the question must be approached and solved realistically. The need for representation is immediate. It arises at least as early as the first formal criminal charge, which in this case was a complaint. Those having funds to employ private counsel generally have representation earlier than that.” (People v. Ferry (1965) 237 Cal.App.2d 880, 886-887, italics added.) Thus, delay is to be avoided if possible. But the practice described instead causes delay in most if not all cases. Further, the delay caused by the practice here is not dispositive of the question to be decided by the trial court: defendant’s indigency.

We agree with the Attorney General that a trial court has discretion as to how to determine whether a defendant is indigent. We have said before that “whether a defendant is eligible for services of the public defender is within the authority and discretion of the trial court. ‘ . . . Trial judges are in the best possible position administratively to decide the question involved, because the facts involved in each case must determine the answer.’ [Citation.]” (People v. Longwith (1981) 125 Cal.App.3d 400, 410.) And by statute the court has the discretion to consider whether to overrule a public defender’s contrary determination. (See § 27706.) The practice of repeatedly sending defendants out to talk to an attorney and report back to the court is not dispositive of the court’s determination of indigency. And if an arraignment judge is not satisfied with a given defendant’s bare claim of indigency in open court (cf. In re Smiley (1967) 66 Cal.2d 606, 619 [“most judges will accept a defendant’s assessment”]) the defendant can be asked to fill out a financial statement as provided by section 27707.

Thus, the described typical practice frustrates the policy of prompt appointment of counsel for indigent defendants and is not an efficient way to provide useful information to the court to resolve a claim of indigency; it poses a needless obstacle to overcome, and perversely increases the burden on those defendants least able to bear the brunt.

A trial court may continue an arraignment on defendant’s request to allow (rather than to compel) a defendant to consider his or her options and try to find counsel; that is a common and benign arraignment practice. And the court may certainly question the information a defendant provides on the standard form (or a similar local form) or require further information not sought on the form. Further, the court may arrange to designate a county officer to make an inquiry of the defendant’s financial circumstances and then make a written recommendation to the court if that option is available. (See Pen. Code, §§ 987, subd. (c), 987.81, subd. (b).)

We hold here only that to routinely and generally as a first resort put defendants claiming indigency to the burden of waiting to have their case resolved and requiring them to incur the time and expense of finding out the cost of hiring an attorney is not “in conformity with the spirit of the law” but instead tends “to impede or defeat the ends of substantial justice.” (Bailey v. Taaffe, supra, 29 Cal. at p. 424.)

Because the practice described by the petition departs from statutory and established precedential norms, we need not address the alternative constitutional and other arguments raised in the petition. A good case for relief has been established.

III

The Remedy

The procedural posture of this case is somewhat convoluted. Defendant filed a mandamus petition in the appellate division, which denied the petition by summary order, i.e., without explanation. The public defender’s office then filed this original petition seeking an order compelling the appellate division to vacate its order and to enter a new order granting relief.

But because the underlying case has been resolved, we see no real purpose in ordering the appellate division to vacate its order denying relief and to enter a new order granting relief. That would be both cumbersome and unnecessary. Instead, we will issue a writ directly to the Superior Court with prospective-only effect.

Prospective-only relief has been granted in procedurally analogous cases. (See Bracher v. Superior Court (2012) 205 Cal.App.4th 1445, 1448, 1458-1459 [prospective writ relief to preclude court from enforcing blanket rule that all misdemeanor defendants must appear at readiness conference in person contrary to Pen. Code, § 977]; Simmons v. Superior Court, supra, 203 Cal.App.3d at p. 75 [rejecting a blanket rule that misdemeanants who promise to appear may not subsequently appear by counsel and pointing out that “our decision effectively provides a declaration of the rights under the law”].) It is also consistent with an alternative prayer in the petition, which seeks “such other and further relief as the Court deems proper and just in this case.” And shifting the focus of our writ to the Superior Court falls within our inherent power to make our order “conform to law and justice.” (Code Civ. Proc., § 128, subd. (a); cf. Topa Ins. Co. v. Fireman’s Fund Ins. Companies (1995) 39 Cal.App.4th 1331, 1344-1345.)

DISPOSITION

Let a writ issue (1) compelling the trial court to recognize the public defender’s office as counsel of record when the public defender has found a defendant to be indigent unless the court finds otherwise consistent with section 27707, and (2) prohibiting the trial court from maintaining the general practice of continuing arraignments to require defendants to contact an attorney and return to court before making an indigency finding.

/s/

Duarte, J.

We concur:

/s/

Blease, Acting P.J.

/s/

Mauro, J.

Filed 4/25/19 P. v. Monia CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY DUANE MONIA,

Defendant and Appellant.

E070885

(Super.Ct.No. RIF1506618)

OPINION

APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed.

Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant Anthony Duane Monia entered his ex-girlfriend’s residence and vandalized property within the home. Following a jury trial, defendant was convicted of felony vandalism (Pen. Code, § 594, subd. (b)(1)). The jury was unable to reach a verdict on the burglary (§ 459) charge, and the trial court declared a mistrial as to that offense. In a bifurcated proceeding, defendant admitted that he had suffered one prior prison term (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)) for attempted murder, and two prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)) for attempted murder and kidnapping.

Subsequently, defendant withdrew his admission to the prior serious felony conviction, and the trial court granted the People’s motion to dismiss that allegation. The trial court denied defendant’s motion for new trial, as well as his motion to strike one or both of his prior strike convictions and his motion to reduce the vandalism conviction to a misdemeanor. Defendant was sentenced to a determinate term of one year, and an indeterminate term of 25 years to life in state prison with 1,622 days of credit for time served. Defendant appeals from the judgment. Based on our independent review of the record, we find no error and affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

In November 2014, S.D. began a romantic relationship with defendant, whom she had met six years earlier. After the relationship began, defendant frequently stayed at S.D.’s house in Moreno Valley. In June 2015, the relationship began to become violent, with defendant physically abusing S.D. on numerous occasions.

S.D. eventually had enough of defendant’s physical abuse, and on August 20, 2015, S.D. told defendant that she could not deal with it and that he had to move out of her home. Defendant responded by becoming enraged, yelling, calling her names, taking her phone and car keys, and blocking the door so she could not leave the house. Defendant later drove S.D. to work in her own vehicle. When she got inside her place of employment, S.D. called the police and reported defendant had taken her car. The police used the GPS system in the car to locate it, and S.D. had it towed home because defendant had taken her keys. When she got home, defendant was at her house so she called the police. Police officers cordoned off the house while an arrest warrant was obtained. The following day, officers went inside S.D.’s home, breaking down the front door and arresting defendant. The bathroom door was also kicked in and damaged. In addition, defendant had damaged S.D.’s cell phone. S.D. subsequently obtained a restraining order against defendant.

On the morning of September 21, 2015, S.D. went out for a couple of hours. When she returned home, she opened the garage door and saw defendant’s car in her garage. She left her residence, and called defendant’s mother, hoping she could persuade him to leave. She also texted defendant and told him to get out of her house. Defendant refused to leave. As a result, S.D. went to a neighbor’s house where she spent the night. Sometime during the night, defendant left S.D.’s house. When S.D. returned home, she noticed that several of her possessions were missing but she was later able to retrieve them from defendant’s car.

On November 7, 2015, T.E., a man with whom S.D. was developing a relationship, moved his possessions into her house. S.D. and T.E. left the house to run some errands at around 7:30 a.m., and returned at around 10:30 a.m. When they returned, the overhead garage door would not open all the way so S.D. went into the house through the front door. When S.D. stepped inside, she saw defendant inside the house, coming towards her. Once S.D. was in the residence, defendant shut and locked the door. Defendant was angry and called S.D. derogatory names.

S.D. looked around and noticed that “[t]he house was destroyed,” and there was “stuff everywhere.” T.E.’s clothes had been removed from suitcases and were in a pile downstairs. Lotion, nail polish, and kitty litter had been poured over the clothes. In addition, there was a burned spot on the floor where defendant burned a card that T.E. had made for S.D. A window screen on a back window was broken, and many of T.E.’s possessions had been taken from S.D.’s home. These included a laptop, jewelry, Gucci sunglasses, a bone-stimulator machine, a bulletproof vest, and a variety of personal documents. T.E. estimated the value of his stolen items at around $10,000. T.E. estimated the value of his damaged clothes at $10,000 to $15,000. T.E.’s 2007 custom show motorcycle, which he kept in S.D.’s garage, was also damaged. It cost T.E. $1,865.59 to have the damage repaired, not including the cost of repainting the motorcycle.

S.D. attempted to deescalate the situation. After approximately an hour and a half, the police arrived at the residence and attempted to get defendant and S.D. out of the home. Around an hour later, defendant and S.D. exited the residence, and officers took defendant into custody. A couple of days later, S.D. noticed that several of her possessions were missing.

Following a preliminary hearing, on March 17, 2016, an information was filed charging defendant with burglary (§ 459; count 1) and felony vandalism (§ 594, subd. (b)(1); count 2). The information also alleged that defendant had suffered one prior prison term (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), to wit, attempted murder in August 2005, and two prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)), to wit, attempted murder and kidnapping in August 2005.

On September 1, 2017, a jury found defendant guilty of vandalism but deadlocked on the burglary charge. The trial court accepted the verdict on the vandalism charge and declared a mistrial on the burglary offense.

Defendant waived a jury trial on the prior conviction allegations. On May 25, 2018, defendant admitted that he had suffered one prior prison term (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), and two prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)).

On April 20, 2018, defendant filed a motion for new trial, arguing the trial court erred in denying his motion for a mistrial under Batson/Wheeler and admitting evidence of uncharged prior bad acts. On this same date, defendant also filed a motion to strike one or both of his prior strike convictions with supporting exhibits pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. In the alternative, defendant requested that his vandalism offense be reduced to a misdemeanor.

On May 24, 2018, the People filed an opposition to defendant’s motion to strike his prior strike convictions and to reduce his vandalism conviction to a misdemeanor.

On May 29, 2018, the People filed their opposition to defendant’s motion for new trial.

The trial court heard defendant’s motions on June 15, 2018. Following argument, the court denied defendant’s motion for new trial. The court also denied defendant’s motion to reduce the vandalism offense to a misdemeanor and defendant’s motion to strike one or both of his prior strike convictions. The court thereafter proceeded to sentencing, and sentenced defendant to an indeterminate term of 25 years to life for the vandalism offense, plus a determinate term of five years for the prior serious felony conviction. The court stayed the one-year term for the prior prison term enhancement allegation. Defendant was awarded 1,622 days of credit for time served. Count 1 was dismissed on the People’s motion.

On June 18, 2018, defendant withdrew his admission to the prior serious felony conviction under section 667, subdivision (a). The trial court thereafter vacated the sentence imposed under that section and granted the People’s motion to dismiss the prior serious felony conviction allegation. The court then imposed a consecutive term of one year for the prior prison term allegation. The sentence for the vandalism offense was not amended. Defendant was sentenced to a total indeterminate term of 25 years to life on the vandalism charge, plus a determinate one-year term for the prior prison term allegation, with 1,622 days of credit for time served.

On June 29, 2018, defendant filed a timely notice of appeal.

III

DISCUSSION

After defendant appealed, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.

We offered defendant an opportunity to file a personal supplemental brief, and he has not done so.

An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.

Case Number: BC674800 Hearing Date: June 24, 2019 Dept: 4A

Motion for Summary Judgment

Having considered the moving and opposition papers, the Court rules as follows.

BACKGROUND

On September 6, 2017, Plaintiff Daniel Morales, by and through his guardian ad litem, Heidi Morales, (“Plaintiff”) filed a Complaint against Defendants South Pasadena Unified School District (“District”), Roland De La Rosa (“De La Rosa”), and Does 1 through 100. Plaintiff alleges that he was attacked on campus by another student and alleges causes of action for (1) negligent supervision of students based on Government Code §§ 815.6 and 815.2 and 5 CCR § 552 against District and Does 1 through 50, (2) negligent hiring, supervision, training, and retention based on Government Code §§ 815.6 and 815.2 against District and Does 1 through 50, (3) negligent infliction of emotional distress against all Defendants, (4) assault against De La Rosa, and (5) battery against De La Rosa.

On March 21, 2019, De La Rosa was dismissed.

On April 16, 2019, Defendant District filed the instant motion for summary judgment and served it on February 15, 2019. This motion is brought on the grounds that Plaintiff has not produced and cannot produce evidence to demonstrate the existence of a genuine issue of triable fact as to whether District breached any duty to Plaintiff or whether any alleged breach was the cause of Plaintiff’s injuries.

Trial is not set.

PARTY’S REQUEST

District requests that this Court enter summary judgment against Plaintiff pursuant to Code of Civil Procedure section 437c on the grounds that there are no triable issues of material fact regarding breach and causation and District is entitled to judgment as a matter of law.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

District’s request for judicial notice of Plaintiff’s Complaint is GRANTED. (Evid. Code § 452.)

Plaintiff’s causes of action against District sound in negligence. “California law has long imposed on school authorities a duty to supervise at all times the conduct of the children on the school grounds and to enforce those rules and regulations necessary to their protection.” (Dailey v. Los Angeles Unified Sch. Dist.¿(1970) 2 Cal.3d 741, 743, quotations and citations omitted.) Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision. (Ibid.) “Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.” (Ibid., footnote omitted.)¿

The standard of care imposed upon school personnel in carrying out this duty to supervise is that degree of care which a person of ordinary prudence, charged with comparable duties, would exercise under the same circumstances. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 934.)

District argues that Plaintiff has not produced and cannot produce evidence that District acted with less care than an ordinary person under the circumstances or that more supervisors were necessary or would have mattered. Defendant also argues that it cannot be liable for the other student’s action because their actions were not foreseeable.

Defendant heavily relies on three cases. In Reithardt v. Board of Ed. of Yuba County (1941) 43 Cal.App.2d 629, a school district was not held liable for the acts of a student who pulled the plaintiff’s legs and caused her to fall. (Reithardt, supra, 43 Cal.App.2d at 631, 636.) The appellate court stated that the school district cannot be held liable for the willful misconduct of a student when such conduct could not reasonably have been foreseen by a person of ordinary prudence. (Id. at 636.) In Woodsmall v. Mt. Diablo Unified School Dist. (1961) 188 Cal.App.2d 262, the court concluded that the school district could not he held liable when one student pushed another student into a pole during recess, even though the supervisor stayed back to lock the classroom and the supervisor’s vision of the recess area was blocked. (Woodsmall, supra, 188 Cal.App.2d at 263.) Additionally, in Skinner v. Vacaville Unified School Dist. (1995) 37 Cal.App.4th 31, the Court of Appeal rejected liability for failure to supervise when a student attacked another student in gym class. (Skinner, supra, 37 Cal.App.4th at 38.) The appellate court reasoned that the supervisor had placed herself in a central location 20 to 30 feet from the plaintiff’s court, there was no indication of the game developing into a violent confrontation, the attacker did not challenge or provoke any student during the first game of the period, then the confrontation erupted suddenly when the supervisory was collecting scores from other teams and she rushed to the victim’s side and effectively dealt with the situation. (Ibid.) The court stated, “[w]e do not think she can be faulted without imposing an unrealistically high standard of care on teachers that would in effect make them ‘insurers of the safety of children on the premises.’” (Ibid.)

District presents evidence that Plaintiff was not injured after the first attack on September 26, 2016 by De La Rosa at brunch break and Plaintiff did not call for help or report the attack to any employee of District. (Puyot Decl., Exh. 3, Morales Depo. at 25-26, 36.) Plaintiff was then attacked by De La Rosa a second time on campus during the lunch break that day. (UMF No. 11.) The lunch break attack escalated quickly and occurred fast. (UMF No. 15.) De La Rosa punched Plaintiff approximately 3 times in quick succession. (UMF No. 13.) Prior to punching Plaintiff, De La Rosa did not announce or yell that he intended to punch Plaintiff. (UMF No. 16.) It is believed that no employee of the district witnessed De La Rosa strike Plaintiff. (UMF No. 17.)

Based on a secondhand understanding, a campus supervisor noticed that a crowd of students was gathering where the altercation between De La Rosa and Plaintiff was taking place, went over to the crowd to investigate, intervened to ensure the parties stayed apart, and then directed students to the school office. (UMF No. 18.) The school employs two full-time campus supervisors as security personnel who monitor school areas during school hours. (UMF No. 22.) During lunch break, one of the campus supervisors is assigned to supervise the western part of campus, and the other is assigned to the eastern part of campus. (UMF No. 23.) South Pasadena High School’s principal has never received any complaints about lack of supervision during student lunch breaks. (UMF No. 27.) Prior to September 26, 2016, Plaintiff and De La Rosa had never met or spoke, and there had been no prior altercation between the two. (UMF Nos. 30-32.)

The Court finds District’s evidence to be insufficient to meet its burden. While it is undisputed that there were supervisors during the lunch break, the evidence that there was no supervisor who witnessed the incident and the description about the intervention by a campus supervisor is inadmissible hearsay to which Plaintiff properly objected in his response to the Separate Statement. District presented the deposition testimony of Janet Anderson, the principal of the subject high school, to support these important factual assertions. But Anderson’s testimony does not show she had any personal knowledge of these facts and is wholly speculative. She even qualifies her testimony stating that she “believes” no one witnessed the incident, and that she has only a “secondhand understanding” of the supervisor intervention. She further states that she does not know if an adult broke it up. (Puyot Decl., Exh. 2, Anderson Depo. at 43.) This evidence is inadmissible. As a result, the District failed to meet its burden of showing that it did not breach its duty of care in support of its motion for summary judgment.

Even if the principal’s surmise were considered, moreover, there is no question that Plaintiff’s evidence raises a genuine issue of material fact regarding the District’s negligence. In its evidence, District tries to create the impression that its employees knew nothing about the morning attack and, thus, had no notice of any potential problem that might arise during the lunch break. It did so by ignoring the deposition testimony of Defendant Roland de la Rosa that District’s campus supervisor, Megerdich Baghram-Gregor, intervened to stop the altercation during the brunch break and, instead of separating the students and sending them to the office, the supervisor just told everyone to go to class. (Plaintiff’s Response to Separate Statement, No. 44). This testimony raises triable issues about whether District acted negligently in failing to protect Plaintiff and whether that negligence caused Plaintiff’s injuries.

To the extent that the Court considered Plaintiff’s evidence submitted with his opposition, District’s evidentiary objections are OVERRULED.

For the reasons explained above, District’s motion for summary judgment is DENIED.

Moving Defendant is ordered to give notice of this ruling.

Case Number: BC633941 Hearing Date: June 25, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO COMPEL PLAINTIFFS’ RESPONSES TO DISCOVERY AND REQUEST FOR MONETARY SANCTIONS

On September 13, 2016, Plaintiffs Julie Anne Hollowell and Mohammad Hosain Salami (collectively, “Plaintiffs”) filed this action against Defendants David Valdivia and Maria Valdivia (collectively, “Defendants”) for motor vehicle negligence arising out of a September 15, 2014 accident. On January 3, 2019, Defendants served Set One of Form Interrogatories and Request for Production of Documents on each Plaintiff. (Declaration of Heather M. Roth, ¶ 2.) On February 22, 2019, defense counsel sent Plaintiffs’ counsel a letter regarding the outstanding discovery and providing an extension until March 1, 2019. (Roth Decl., ¶ 4.) To date, Plaintiffs have not served any responses to Defendants’ discovery requests. (Roth Decl., ¶ 5.) Defendants move to compel Plaintiffs’ responses and to impose monetary sanctions.

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Plaintiffs filed no opposition to these Motions and it is undisputed they failed to serve timely responses to Defendants’ discovery requests. Accordingly, these Motions to compel are GRANTED and Plaintiffs are ordered to provide verified responses, without objection, to Defendants’ Form Interrogatories and Request for Production of Documents within twenty (20) days of the date of this Order.

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c), 2031.300, subd. (c).) The requests for monetary sanctions are GRANTED and imposed against Plaintiff Hollowell and her counsel, jointly and severally, in the reduced amount of $407.50 for two hours at defense counsel’s hourly rate of $143.75 and $120.00 in filing fees, to be paid within twenty (20) days of the date of this Order, and against Plaintiff Salami and his counsel, jointly and severally, in the reduced amount of $407.50 for two hours at defense counsel’s hourly rate of $143.75 and $120.00 in filing fees, to be paid within twenty (20) days of the date of this Order,

Moving party to give notice.

Case Number: BC618904 Hearing Date: June 24, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

andrea figueroa lopez,

Plaintiff,

v.

forest city enterprises, inc., et al.,

Defendants.

Case No.: BC618904

Hearing Date: June 24, 2019

[TENTATIVE] order RE:

motions to compel discovery responses

Defendants Forest City Enterprises, Inc. and Federal Building Services (“Defendants”) move to compel responses from Plaintiff Andrea Figueroa Lopez (“Plaintiff”) to: Form Interrogatories (“FROG”), set two; Special Interrogatories (“SROG”), set two; Supplemental Interrogatories (“SuppROG”); Requests for Production of Documents (“RPD”), set two; and Supplemental Requests for Production of Documents (“SuppRPD”). Defendants also move to deem admitted matters specified in Requests for Admissions (“RFA”), set two. The motions are granted.

Defendants served the FROG, SROG, RPD, and RFA on Plaintiff by mail on February 15, 2019. Defendants served the SuppROG and SuppRPG on Plaintiff by mail on March 4, 2019. Defendants granted Plaintiff an extension of time to respond to April 23, 2019. As of the filing date of this motion, Plaintiff has not served responses. Plaintiffs have not opposed the motions, and there is nothing in the record to suggest that they have complied with their discovery obligations.

Accordingly, the motions to compel responses to the FROG, SROG, SuppROG, RPD, and SuppRPD are granted per Code of Civil Procedure sections 2030.290 and 2031.300. Plaintiff is ordered to serve responses to Plaintiff’s FROG, SROG, SuppROG, RPD, and SuppRPD without objections, within 30 days of service of this order.

Defendants also move to deem the matters specified in the RFA. Where a party fails to respond to requests for admissions, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction. (Code of Civ. Proc., § 2033.280, subd. (b).) The court “shall” grant a motion to deem admitted the matters specified in the requests for admissions, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code of Civ. Proc., § 2033.280, subd. (c).) As Plaintiff failed to respond to Defendants’ RFA, the Court grants the motion to deem admitted matters specified in the RFA.

Defendants seek sanctions against Plaintiff and her counsel-of-record in connection with the motions. The Court finds Plaintiff’s failure to respond to Defendants’ discovery a misuse of the discovery process. The Court imposes sanctions against Plaintiff and her counsel of record, Bob B. Khakshooy, in the amount of $2,160, which represents nine hours of attorney time to prepare the motions and attend the hearing at a reasonable billing rate of $200 per hour, plus $360 in filing fees.

CONCLUSION AND ORDER

Defendants’ motions to compel responses to the FROG, SROG, SuppROG, RPD, and SuppRPD are granted per Code of Civil Procedure sections 2030.290 and 2031.300. Plaintiff is ordered to serve verified responses, without objections, within 30 days of notice of this order.

Plaintiff is deemed to have admitted the truth of all matters specified in the RFA as of this date.

Plaintiff and her counsel of record, Bob B. Khakshooy, jointly and severally, are ordered to pay monetary sanctions in the amount of $2,160 to Defendants, by and through counsel, within 30 days of notice of this order.

Defendants are ordered to provide notice of this order and file proof of service of such.

DATED: June 24, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC633941 Hearing Date: June 25, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO COMPEL PLAINTIFFS’ RESPONSES TO DISCOVERY AND REQUEST FOR MONETARY SANCTIONS

On September 13, 2016, Plaintiffs Julie Anne Hollowell and Mohammad Hosain Salami (collectively, “Plaintiffs”) filed this action against Defendants David Valdivia and Maria Valdivia (collectively, “Defendants”) for motor vehicle negligence arising out of a September 15, 2014 accident. On January 3, 2019, Defendants served Set One of Form Interrogatories and Request for Production of Documents on each Plaintiff. (Declaration of Heather M. Roth, ¶ 2.) On February 22, 2019, defense counsel sent Plaintiffs’ counsel a letter regarding the outstanding discovery and providing an extension until March 1, 2019. (Roth Decl., ¶ 4.) To date, Plaintiffs have not served any responses to Defendants’ discovery requests. (Roth Decl., ¶ 5.) Defendants move to compel Plaintiffs’ responses and to impose monetary sanctions.

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Plaintiffs filed no opposition to these Motions and it is undisputed they failed to serve timely responses to Defendants’ discovery requests. Accordingly, these Motions to compel are GRANTED and Plaintiffs are ordered to provide verified responses, without objection, to Defendants’ Form Interrogatories and Request for Production of Documents within twenty (20) days of the date of this Order.

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c), 2031.300, subd. (c).) The requests for monetary sanctions are GRANTED and imposed against Plaintiff Hollowell and her counsel, jointly and severally, in the reduced amount of $407.50 for two hours at defense counsel’s hourly rate of $143.75 and $120.00 in filing fees, to be paid within twenty (20) days of the date of this Order, and against Plaintiff Salami and his counsel, jointly and severally, in the reduced amount of $407.50 for two hours at defense counsel’s hourly rate of $143.75 and $120.00 in filing fees, to be paid within twenty (20) days of the date of this Order,

Moving party to give notice.

Case Number: BC602681 Hearing Date: June 25, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

cecelia kleiner,

Plaintiff,

v.

ralphs grocery company,

Defendant.

Case No.: BC602681

Hearing Date: June 25, 2019

[TENTATIVE] order RE:

motions to compel discovery responses

Defendant Ralphs Grocery Company (“Defendant”) moves to compel responses from Plaintiff Cecelia Kleiner (“Plaintiff”) to: Supplemental Interrogatories (“SuppROG”), set two, and Supplemental Requests for Production of Documents (“SuppRPD”), set two. Defendant served the discovery on Plaintiff by mail on January 22, 2018. After this Court granted Plaintiff’s prior counsel’s motion to withdraw, Defendant re-served the discovery on Plaintiff on January 26, 2018. Plaintiff retained new counsel on March 8, 2018, and Defendant’s counsel met-and-conferred concerning the outstanding discovery with Plaintiff’s new counsel on at least four occasions. However, Plaintiff has not yet responded to the outstanding discovery requests. Nor has Plaintiff opposed this motion. Accordingly, the motions to compel responses to the SuppROG and SuppRPD are granted per Code of Civil Procedure sections 2030.290 and 2031.300. Plaintiff is ordered to serve responses to Defendant’s SuppROG and SuppRPD, without objections, within thirty (30) days of service of this order.

Defendant seeks sanctions in connection with the motions. The Court finds Plaintiff’s failure to respond to Defendant’s discovery is an abuse of the discovery process warranting sanctions. The Court imposes sanctions against Plaintiff and her counsel of record, the McElfish Law Firm, jointly and severally, in the amount of $1,720, representing eight hours of attorney time at a billing rate of $200 per hour, plus two filing fees of $60 each.

CONCLUSION AND ORDER

Defendant’s motions to compel responses to the SuppROG and SuppRPD are granted per Code of Civil Procedure sections 2030.290 and 2031.300. Plaintiff is ordered to serve verified responses, without objections, within thirty (30) days of notice of this order.

Plaintiff and her counsel of record, the McElfish Law Firm, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,720 to Defendant, by and through counsel, within thirty (30) days of notice of this order.

Defendant is ordered to provide notice of this order and file proof of service of such.

DATED: June 25, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC681756 Hearing Date: June 25, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 5

isaiah solorio ,

Plaintiff,

v.

los angeles unified school district,

Defendant.

Case No.: BC681756

Hearing Date: June 25, 2019

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

Plaintiff Isaiah Solorio (“Plaintiff”) alleges that while he was a student at a school operated by Defendant Los Angeles Unified School District (“Defendant”), he tripped and fell on the blacktop area outside the locker room and cut his finger on broken glass. Defendant moves for summary judgment on Plaintiff’s complaint.

Plaintiff used a form complaint to assert causes of action for “premises liability” and “negligence,” though the complaint cites Government Codes 815.2 and 835, among others. Section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Govt. Code, § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.) Per Government Code section 835, “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.) A public entity has actual notice of a dangerous condition “if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” (Gov. Code, § 835.2, subd. (a).) A public entity has constructive notice of a dangerous condition only if “the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. (Gov. Code, § 835.2, subd. (b).)

The Court interprets the first cause of action (for premises liability) as asserting a claim for dangerous condition of public property under Government Code section 835. This is a proper basis for an action against a public entity. The Court interprets the second cause of action (for general negligence) as raising a common law claim. This is not a proper basis for an action against a public entity. Therefore, the Court grants summary judgment on the second cause of action (for general negligence).

With respect to the first cause of action—dangerous condition of public property—the undisputed evidence suggest that the broken glass was on the blacktop for no more than 90 minutes. Kenneth Jefferson testified that the last time he would have inspected the blacktop area would have been between 1:30 p.m. and 1:45 p.m. (Evidence In Support Of Opposition to Motion for Summary Judgment, Exh. #2, p. 36.) Jefferson testified that he “clocked out” at 2:00 p.m. (Id., Exh. #2, p. 27.) Jefferson testified that Cole was responsible for inspecting the blacktop area after Jefferson left work. (Id., Exh. #2, p. 57.) Cole testified that he “clocks on” at 2:00 p.m. as Jefferson is “clocking off.” (Id., Exh. #3, p. 16.) Cole testified that he performs his duties in a certain pattern. (Id., Exh. #3, pp. 25-26.) Cole testified that he checks the blacktop “between 4:30 [p.m.] and 5:30 [p.m.].” (Id., Exh. #3, p. 26:5-6.)

There is no dispute that the accident occurred at approximately 3:00 p.m., so at most, the glass was on the blacktop for 90 minutes. The Court would like to hear argument on whether this is sufficient to provide constructive notice to Defendant. While the Court acknowledges that the cases cited by Plaintiff find constructive notice when a dangerous condition exists for 15 to 30 minutes, those cases involved grocery stores. Grocery stores are smaller areas with more enclosed spaces and an expectation of greater staffing than a school campus. Therefore, the Court has no tentative order on this motion. Both sides should appear at the hearing for oral argument. Should any party not appear at the hearing, they will waive their right to a hearing and shall submit to whatever decision the Court makes on this motion.

DATED: June 25, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Filed 4/29/19 Hamzat v. Rhoten CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

SIKIRU HAMZAT,

Plaintiff and Appellant,

v.

SANDRA RHOTEN et al.,

Defendants and Respondents.

G056233

(Super. Ct. No. 30-2016-00877738)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Martha K. Gooding, Judge. Affirmed.

Sikiru Hamzat, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Danielle F. O’Bannon, Senior Assistant Attorney General, Richard J. Rojo and Mark A. Brown, Deputy Attorneys General, for Defendants and Respondents.

* * *

In this civil rights action under section 1983 of title 42 of the United States Code (section 1983), plaintiff Sikiru Hamzat, a former student of California State University Fullerton (CSUF), alleged that CSUF administrators, defendants Kathy Spofford and Sandra Rhoten, violated his First Amendment rights. Hamzat now appeals from a summary judgment entered in favor of Spofford and Rhoten. The undisputed evidence presented at the summary judgment hearing showed that neither Spofford nor Rhoten did anything whatsoever to violate Hamzat’s First Amendment rights. Accordingly, we affirm the judgment.

FACTS

The Third Amended Complaint

The allegations against defendants Spofford and Rhoten in Hamzat’s operative third amended complaint (TAC) are somewhat cryptic. As to the respondents in this appeal, Spofford and Rhoten, Hamzat alleges he was disciplined because he made a statement to “Spofford’s office (health department)” that he “was being treated unfairly because of the color of [his] skin, and that if [he had] to pay the $20 they’ll pay me back.” Dean of Students Rhoten conducted a disciplinary hearing, which Hamzat did not attend, in which she alleged that his statement to Spofford’s office violated the student code of conduct. The “hearing officers” and the dean’s office made a recommendation to CSUF President Garcia who issued a final decision pursuant to executive order 1098 on student conduct procedures. Hamzat “made it clear to” Garcia and other school officials that he would “not abide by the unfair sanction levied.” Subsequently, he was expelled from school.

Hamzat further alleged that his statements were political expression protected by the First Amendment, “Section 2(a) of Article I of the California Constitution, and Section 48907 of the Education Code.” He further alleged his conversation with Spofford’s office did not constitute a threat or a disruptive discussion.

The TAC sought judgment pursuant to section 1983 against defendants for violating his First Amendment rights. Hamzat sought, inter alia, an order requiring defendants to pay him back his tuition fees of around $19,000, costs, and attorney fees (if he hired an attorney).

Spofford’s and Rhoten’s Motion for Summary Judgment

Spofford and Rhoten filed a combined motion for summary judgment. In support of the motion, the declarations of Spofford and Rhoten added detail to the spare allegations of the TAC.

Spofford’s Declaration

Spofford declared that at the time of the incident giving rise to this litigation, she was the “Student Wellness Executive Director” at CSUF and “oversaw Health Services, Counseling and Psychological Services, and Disability Support Services for students” at CSUF. On August 16, 2016, Spofford received a telephone call from the acting director of health services for that day relating that a health services employee, Sylvia Davalos had reported that Hamzat “had used inappropriate language in a telephone call during which he was complaining about a $20 fee being charged to his account because he failed to cancel a medical appointment.” Spofford advised the acting director that Davalos should file a complaint with “Student Conduct.” Davalos did file her complaint, alleging that Hamzat “was extremely irate, used profanity, screamed obscenities and stated ‘this is why people go crazy, and you will see what’s going to happen.’” Spofford’s declaration explained that during the time she was the executive director, “Health Services had a policy that a hold would be . . . placed on a student’s transcripts and academic records if there was an outstanding balance,” but added, “I did not direct that a hold be placed on Mr. Hamzat’s transcripts and academic records.” Spofford also stated that “As Executive Director, I was not responsible for imposing any discipline or adverse action against any student at [CSUF] for violation of the student conduct code. I did not impose any sanction or adverse action, or recommend any sanction or adverse action, be taken against Mr. Hamzat for violation of the student conduct code.”

Exhibit A to Spofford’s declaration is a confidential risk management incident report for CSUF’s student health and counseling services. It reports an incident on August 16, 2016 involving student Hamzat and staff member Davalos. Detective Hollyfield of the university police was notified. The incident is described by Davalos as follows: “I took a phone call that was transferred to me by Mary trying to assist with explaining why he had a fee on his account. He was extremely irate and using profanity, I let him vent in hopes he would cool off and asked him to please stop using inappropriate language so I can further assist him. After I explained the policy he continued to use profanity and then stated ‘this is why people go crazy, and you will see what’s going to happen.’ I asked him if he was [threatening] me, he continued to scream obscenities and I stated this conversation is over I can no longer assist him until he calms down. [¶] Approx. 2:27 he called back and identified himself and stated ‘if he has to pay the $20.00 fee tha[n] trust me you will be paying for this[.]’) Then he hung up. [¶] At 2:52 Pt called back and continued with his profanity. His call was transferred to the cashier as he requested.”

Rhoten’s Declaration

Rhoten’s declaration filled in the details of her role in the incident. At the time of the incident she was the associate dean of student conduct at CSUF. Her “duties included investigating and adjudicating alleged student conduct code violations . . . .” She recounted that her office received the Davalos complaint which alleged that on August 16, 2016, Hamzat had “violated the university student conduct code set forth at Title 5, California Code of Regulations, Section 41301 in communications with staff members at the Student Health Center located on [CSUF] campus.” Pursuant to the procedures set forth in California state university executive order 1098, Rhoten notified Hamzat of the allegations and requested that he schedule a meeting with her by September 9, 2016 “to discuss the complaint and to review the University Student Conduct Code.” She also advised him he could bring an advisor with him, but the advisor could not speak on his behalf, and could not be a licensed attorney. Rhoten explained that if Hamzat did not schedule a meeting with her by September 9, a hearing would be scheduled pursuant to executive order 1098 and a hold would be placed on his academic records.

Hamzat responded by e-mail to Rhoten’s invitation to schedule a meeting by stating he did not trust Rhoten enough to attend the meeting without an attorney. Hamzat offered three alternatives: (1) allow his attorney to be present; (2) record the meeting; or (3) conduct the discussion by video conference or e-mail. If Rhoten did not agree to his conditions, she could “skip the meeting and just schedule the office hearing.” Pursuant to executive order 1098, Hazmat’s failure to meet with Rhoten resulted in a hold being “placed on his records prohibiting him from performing any registration transactions or releasing his records or transcripts.”

Hamzat’s Opposition

Hamzat’s opposition to the summary judgment motion alleged the “case involved a black student who made a political statement during a conversation with school staff.” He asserted a triable issue of fact existed as to his section 1983 cause of action because “Rhoten accused [him] of commit[ing] a crime on campus” and denied his request to have an attorney present at the hearing.

Hamzat’s declaration in support of his opposition denied making the statements attributed to him in the Davalos complaint. Instead, Hamzat declared he said to Davalos: “I was been [sic] treated unfairly because I am black and if I had to pay the $20 the school will pay me back. A friend of mine who is white had the same problem and how come you guys never put a hold on his record. I called your supervisor Kathy the other day and I was told to call back today, that the hold would be removed but now you’re telling me that I have to pay the $20 this is freaking stupid. When it comes to black people you guys always treat us differently. You’re freaking lying right now because I did show up for my lab result that day, you can check the CCTV cameras. You saw me that day and asked me to come back, which I declined. You’re going to charge me $40 because I didn’t show up twice in the same day but as a courtesy, you’ve waived $20 and I’ll have to pay $20. Who does that? You people are freaking racist, If I’m white would you put a hold on his record? We experienced same stuff on the street and now same on campus, this is why black people get mad. Are you kidding me right now?

Court’s Ruling

The court granted Spofford’s and Roten’s summary judgment motion. Judgment was entered against Hamzat on April 23, 2018.

DISCUSSION

Hamzat challenges the court’s grant of defendant’s summary judgment motion on both procedural and substantive grounds.

Hamzat’s Procedural Challenges Are Without Merit

First, Hamzat argues the court should have denied defendants’ summary judgment motion because it was filed late. Code of Civil Procedure section 437c, subdivision (a)(3) requires that the motion “be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” (Italics added.) On January 2, 2018, “for good cause shown,” the court granted defendants’ ex parte application to have their motions heard on April 9, 2018 (28 days prior to the May 7, 2018 scheduled trial date). Hamzat has not demonstrated that he suffered any prejudice as a result of this discretionary ruling.

Second, he argues the court abused its discretion by allowing defendants to file a table of contents to their exhibits, asserting defendants’ filing of the table of contents on March 21, 2018 violated Code of Civil Procedure section 437c, subdivision (a)(2) and California Rules of Court, rule 3.1350(g). There was no abuse of discretion. As the court explained in its order granting defendants’ summary judgment motions: “The exhibits were not voluminous; Defendants filed a table of contents for the exhibits as an ‘errata’ on [March 22, 2018], shortly after Plaintiff raised the issue; and Plaintiff has not shown that he was prejudiced in any way as a result of his belated receipt of the table of contents.” We agree.

Third, Hamzat inaccurately argues the proposed judgment was filed late. In fact, the court’s order granting defendants’ summary judgment motion directed defendants to serve and file a proposed judgment by April 18, 2018. Defendants served and filed the proposed judgment on April 11, 2018, as reflected by the court clerk’s stamp and the proof of service.

Fourth, Hamzat contends “defendants’ motion to compel was prematurely filed and the court granted it.” Hamzat has inadequately briefed this issue by failing to provide any analysis or any record references to the alleged motion and court order. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).) He has therefore waived the issue.

Hamzat Has Not Shown the Existence of a Triable Issue of Material Fact

A summary judgment motion is “granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A material fact is a “fact that is necessary under the pleadings and, ultimately, the law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A triable issue of material fact exists if “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850.)

“A defendant . . . has met . . . her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

An appellate court reviews “the trial court’s decision de novo.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

Here, the TAC alleges a single cause of action—defendants violated section 1983 when they abridged his First Amendment rights by alleging he violated the student code of conduct and expelling him “from school” because he said he “was treated unfairly because of the color of [his] skin and they would pay [him] back the money if [he] had to pay the $20.”

Section 1983 “creates a cause of action against” a government official who “deprives another of rights guaranteed under the Constitution.” (Jones v. Williams (9th Cir. 2002) 297 F.3d 930, 934.) “In order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation . . . .” (Ibid.; Taylor v. List (9th Cir. 1989) 880 F.2d 1040, 1045 [“Liability under section 1983 arises only upon a showing of personal participation by the defendant”].)

Spofford’s evidence showed she did not personally violate Hamzat’s First Amendment rights and Hamzat failed to show a triable issue as to this element of the claim. Spofford declared under penalty of perjury that she did not impose or recommend any sanction or adverse action against Hamzat for violating the student conduct code, and that she did not “direct that a hold be placed on Mr. Hamzat’s transcripts and academic records,” although a health services policy did provide “that a hold would be placed on a student’s transcripts and academic records if there was an outstanding balance due.” Hamzat’s declaration (the only evidence he offered in opposition to the motion) did not even mention Spofford, much less show her to be personally responsible for any sanction imposed against him. Hamzat did say, in his separate statement in opposition to the motion, that Spofford “was responsible for placing that hold . . . prior to August 16, 2016.” (Italics added.) But that allegation was unsupported by any evidence. Moreover, even if that were true, a hold placed before the date of Hamzat’s alleged protected speech did not violate his First Amendment rights.

Likewise, Rhoten’s evidence showed she did not personally deprive Hamzat of his First Amendment rights and Hamzat similarly failed to show a triable issue as to this element of the claim. Rhoten declared under penalty of perjury that she did not “expel, or take any action adverse . . . to Mr. Hamzat because he said ‘he was being treated unfairly because of the color of [his] skin, and that they will pay [him] back the money [he] paid to the school if [he] had to pay the $20.00.’” Rather, she informed him by letter that he should schedule a meeting with her to discuss the complaint against him and to review the university student conduct code and that he could bring a nonattorney advisor. She subsequently informed him by a separate letter that a hold had been placed on his records because he failed to meet with her pursuant to executive order 1098.

In Hamzat’s declaration in opposition to the motion, he acknowledged that the sanction against him was in response to his failure to meet with Rhoten at her request, not because of anything he had said on August 16. Hamzat declared: “I told Sandra Rhoten that I will not attend any meeting or hearing without, (1) My attorney, Or (2) Record our conversation at the meeting, Or (3) discuss the matter via email or telephone. Sandra Rhoten and California State University, Fullerton ignored this and placed a prolonged hold on my academic record, ignoring my rights.” In his separate statement in opposition to the motion, Hamzat stated that Rhoten accused him of committing a crime on campus and denied him his due process right to have an attorney present at the meeting. But Hamzat did not present any evidence that Rhoten had accused him of committing a crime on campus, and the TAC did not allege a due process violation. Furthermore, Hamzat failed to submit any evidence or legal authority that he had a due process right to have an attorney present at an initial meeting held pursuant to executive order 1098. (See, e.g., Esteban v. Central Missouri State College (8th Cir. 1969) 415 F.2d 1077, 1090 [“school regulations are not to be measured by the standards which prevail for the criminal law and for criminal procedure; and that the courts should interfere only where there is a clear case of constitutional infringement”].)

On appeal Hamzat argues a material issue of disputed fact is (1) whether he failed to pay a $20 cancellation fee, or whether the fee was actually for a “no show”; (2) whether he violated the student conduct code; and (3) whether two holds were placed on his academic record. The first two are immaterial. The fee was for Hamzat’s failure to cancel an appointment, not in retaliation for his exercise of a First Amendment right. Whether Hamzat actually violated the student conduct code is also immaterial; the salient fact is that he failed to attend a meeting to discuss the complaint that had been lodged. The third issue is undisputed, but still immaterial. The first hold was placed by health services prior to Hamzat’s August 16, 2016 conversation, while the second was placed by student conduct pursuant to executive order 1098 after Hamzat failed to meet with Rhoten. Neither was in retaliation for Hamzat’s August 16, 2016 conversation.

The court correctly determined there was no triable issue of material fact and that Spofford and Rhoten were entitled to judgment as a matter of law.

DISPOSITION

The judgment is affirmed. Spofford and Rhoten shall recover their costs on appeal.

IKOLA, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.

Filed 4/29/19 P. v. Abela CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KERRY SHANE ABELA,

Defendant and Appellant. H045723

(Santa Cruz County

Super. Ct. No. F22003)
Kerry Shane Abela appeals the denial of his petition to reduce his felony conviction of second degree burglary of a vehicle to a misdemeanor and to resentence him pursuant to Proposition 47. (Pen. Code, §§ 459, 1170.18, subd. (f).) We conclude that burglary of a vehicle is not an offense that has been reclassified as a misdemeanor by Proposition 47 and affirm.

I. STATEMENT OF THE FACTS AND CASE
II.
This court affirmed the judgment of the trial court in Abela’s first appeal of this case, People v. Abela (Oct. 19, 2016, H042550 [nonpub. opn.] (Abela)). The facts and procedure related to his convictions are summarized in Abela as follows: “On July 2, 2011, the Santa Cruz Police Department received a report of a residential burglary. When the police arrived to investigate, the victim told them he had found his stolen property—an electric guitar and two microphones—at a local music store. An employee at the store told police he bought the items from a man with a paper copy of a driver’s license in the name of ‘Robin Abela.’

“Also on July 2, 2011, another victim told police two speakers had been stolen

from his van. The victim found the speakers at the same music store where the guitar and microphones were found. The music store employee showed the victim video footage from a surveillance camera next door. The victim recognized a man known as ‘Karey’ or ‘Carey’ who had been causing problems and stealing items at the victim’s apartment complex. The music store employee later identified Abela in a photographic lineup.

“Abela subsequently stated he had received the stolen property from someone named ‘Stanley,’ but he denied committing either of the burglaries.” (Abela, supra, H042550 [nonpub. opn.] at p. 2.)

“The information charged Abela with three counts: Count One—Residential burglary ([Penal Code] § 459); Count Two—Burglary of a vehicle (§ 459); and Count Three— Receiving stolen property (§ 496, subd. (a)). As to Count One, the information alleged Abela had suffered two prior serious felony convictions: Resisting arrest in 2005 (§ 148.10), and assault with a deadly weapon in 1994 (§ 245). As to all three counts, the information also alleged the two prior convictions constituted strike priors. (§ 667, subds. (b)-(i).) The information further alleged Abela had served six prior prison terms. (§ 667.5, subd. (b).)

“In June 2013, Abela pleaded guilty to Count Three, and he pleaded no contest under Alford to Counts One and Two. Abela admitted he had previously been convicted of a strike and a serious felony for assault with a deadly weapon in 1994. The parties stipulated to dismissal of the remaining strike allegation—the conviction for resisting arrest in 2005—because it did not constitute a strike. Abela also admitted three of the prior prison term allegations. The remaining prior prison term allegations were stricken.” (Abela, supra, H042550 [nonpub. opn.] at pp. 2-3.)

“The court imposed a total term of 17 years 4 months, composed of eight years for Count One (the midterm of four years, doubled by the strike), 16 months for Count Two (one-third the midterm of two years, doubled by the strike), five years for the prior serious felony, and three years for the prior prison terms, all consecutive. The court also reduced the conviction on Count Three to a misdemeanor and imposed a term of 30 days in county jail.” (Abela, supra, H042550 [nonpub. opn.] at p. 4.)

On February 9, 2018, Abela filed a petition for reduction of his conviction to a misdemeanor and resentencing pursuant to section 1170.18. The district attorney filed an objection to the petition on the ground that Proposition 47 does not apply to second degree burglary of a vehicle (§ 459). On March 26, 2018, the trial court summarily denied the petition.

Abela filed a notice of appeal and requested a certificate of probable cause on April 6, 2018.

III. DISCUSSION
IV.
Proposition 47, the Safe Neighborhoods and Schools Act of 2014, reduced certain felonies to misdemeanors, including, theft, by adding section 490.2, which states in pertinent part: “Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($ 950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.” (§ 490.2, subd. (a).)

Interpretations of Proposition 47 are subject to de novo review. (People v. Bush (2016) 245 Cal.App.4th 992, 1003.) The statute’s plain meaning controls our interpretation, unless the words are ambiguous and permit more than one reasonable interpretation. (Ibid.)

Abela was convicted of burglary, consisting of entry into a locked vehicle with the intent to steal property or commit any felony. (§ 459.) The statutory language in Proposition 47 does not include burglary. Neither section 490.2 nor section 1170.8 refers specifically to vehicle burglary as an offense eligible for resentencing. Proposition 47 did not affect section 459, “nor did it explicitly reduce all prior felony second degree burglary offenses to misdemeanor second degree burglary offenses.” (People v. Chen (2016) 245 Cal.App.4th 322, 326.)

Abela acknowledges that burglary is not specifically referenced in Proposition 47. However, he argues that the crime of burglary of a vehicle is analogous to vehicle theft, which is eligible for resentencing if the defendant can establish that the vehicle was worth less than $950. (People v. Page (2017) 3 Cal.5th 1175 (Page).) In Page, the Supreme Court held that convictions for vehicle theft under Vehicle Code section 10851 “are not categorically ineligible for resentencing” under section 1170.18. (Id. at p. 1189.) Accordingly, “obtaining an automobile worth $ 950 or less by theft constitutes petty theft under section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged.” (Id. at p. 1187.)

Abela notes that the Supreme Court in Page interpreted Proposition 47 “broadly” and “liberally” to effectuate the intent of the voters. (Page, supra, 3 Cal.5th 1175 at p. 1187.) He asserts that a such a broad interpretation has been used in recent cases such as People v. Romanowski (2017) 2 Cal.5th 903, 910, wherein the court held that theft of access card information was a crime that came within the petty theft statute in section 490.2, and People v. Gonzales (2017) 2 Cal.5th 858, wherein the court held that cashing stolen checks came within the shoplifting statute in section 459.5. Abela argues that we too should interpret Proposition 47 broadly to include burglary of a vehicle as an offense that is eligible for resentencing under Proposition 47.

While we agree that Proposition 47 should be interpreted broadly, such interpretation does not necessitate a conclusion that burglary of a vehicle is tantamount to petty theft. Indeed, the theory that burglary of a vehicle falls within section 490.2 was rejected in People v. Acosta (2015) 242 Cal.App.4th 521. In Acosta, the defendant sought to reduce his felony conviction of attempted second degree car burglary to a misdemeanor. The court held that car burglary, which is a crime of entering, and petty theft, which is a crime of taking are not analogous. The court concluded, “Because nothing in the language of Proposition 47 suggests it applies to [defendant]’s crime, there is no merit to his argument that reclassifying his offense as a misdemeanor is required in order to comply with the express intent of liberal construction of Proposition 47.” (Id. at p. 526.)

We agree with the court in Acosta that burglary of a vehicle does not come within the meaning of petty theft under section 490.2, and therefore, it is not an offense that is eligible for reduction to a misdemeanor and resentencing pursuant to section 1170.18.

V. DISPOSITION
VI.
The order is affirmed.

_______________________________

Greenwood, P.J.

WE CONCUR:

_____________________________________

Grover, J.

______________________________________

Danner, J.

People v. Abela

No. H045723

Grover, J., Concurring

The offense defined by the burglary statute is fundamentally based on unlawful entry, not theft. (Pen. Code, § 459; People v. Acosta (2015) 242 Cal.App.4th 521, 526.) That remains true even when the objective of the entry is to commit theft, as is commonly the case. I therefore agree that Proposition 47 did not make vehicle burglary a misdemeanor, since a person convicted of burglary has not been convicted of “obtaining any property by theft where the value … does not exceed nine hundred fifty dollars.” (Pen. Code, § 490.2.)

People v. Page (2017) 3 Cal.5th 1175 (Page) does not dictate a different result. There the Supreme Court determined that a conviction under Vehicle Code section 10851 for the unauthorized taking or driving of a vehicle is covered by Proposition 47 when the basis for the conviction is taking the vehicle. A person convicted of violating the statute in that way has in effect been convicted of vehicle theft. (Page, supra, at p. 1184.) In reaching that conclusion, the court relied on People v. Garza (2005) 35 Cal.4th 866, 871, which held that a person convicted of taking a vehicle under Vehicle Code section 10851 cannot also be convicted of receiving stolen property because one cannot both steal and receive the same property. (Page, supra, at p. 1183.) In contrast, one can properly be convicted of both burglary and receiving property from the same burglary. (People v. Allen (1999) 21 Cal.4th 846, 866, quoting People v. Carr (1998) 66 Cal.App.4th 109, 113 [“A defendant who is convicted of burglary is not convicted of stealing any property at all. [The] prohibition on dual conviction is thus inapplicable. We therefore hold that a defendant may lawfully be convicted of burglary and of receiving property that he
stole during the burglary.”) The conclusion that burglary is not a theft offense is therefore consistent with the reasoning in Page.

I also observe that Proposition 47 expressly identified one type of burglary for misdemeanor treatment: entering a commercial establishment during business hours with intent to steal property valued at not more than $950. (See Pen. Code, § 459.5, defining shoplifting.) Had Penal Code section 490.2 been intended to extend to burglaries generally, there would have been no need to create the shoplifting offense in Penal Code section 459.5.

___________________________________

GROVER, J.

H045723 – People v. Abela

Filed 4/29/19 P. v. Abela CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

KERRY SHANE ABELA,

Defendant and Appellant.

H045740

(Santa Clara County

Super. Ct. No. 144348)
Defendant Kerry Shane Abela appeals the denial of his petition for reclassification of his felony conviction for receiving stolen property (Pen. Code, § 496) to a misdemeanor pursuant to section 1170.18. We affirm.

I. STATEMENT OF THE FACTS AND CASE
II.
On July 8, 1990, a residential burglary occurred on Ashburton Drive in San Jose. The property owner prepared a list of the property taken, which included a vintage car valued at $6,000, household items, tools, and electronic equipment. The owner estimated the total value of the property taken was over $10,000.

On September 17, 1990, Abela was charged by information with residential burglary (§§ 459, 460.1; count 1), driving or taking a vehicle (Veh. Code, § 10851; count 2), and felony receiving stolen property (§ 496; count 3). On January 24, 1991, Abela pleaded guilty to felony receiving stolen property (§ 496; count 3), and the remaining charges were dismissed. On February 19, 1991, the trial court suspended imposition of sentence and placed Abela on formal probation for a period of three years and ordered him to serve 120 days in county jail.

On February 14, 2018, Abela filed a petition for reclassification of his felony receiving stolen property conviction (§ 496) to a misdemeanor pursuant to section 1170.18. The trial court denied Abela’s petition on the ground that the record showed that the value of the stolen property exceeded $950.

Abela filed a timely notice of appeal on April 6, 2018.

III. DISCUSSION
IV.
Under Proposition 47, a felony conviction for receiving stolen property may be reduced to a misdemeanor where the value of the stolen property does not exceed $950, and where, as here, the petitioner has no prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv) or for an offense requiring him to register as a sex offender pursuant to section 290, subdivision (c). (§ 1170.18, subds. (f)-(i).) “The ultimate burden of proving section 1170.18 eligibility lies with the petitioner. (See Evid. Code, § 500.)” (People v. Romanowski (2017) 2 Cal.5th 903, 916.)

When a defendant files an application for relief under Proposition 47, the court conducts an initial screening, which is limited to a determination of whether the applicant has presented a prima facie basis for relief under section 1170.18. (People v. Washington (2018) 23 Cal.App.5th 948, 953 (Washington).) This initial screening is based on a review of the petition itself, generally prepared by the petitioner in pro per, as well as the record of conviction. “If the court finds, based on the petition and its review of the record, that there is a prima facie basis for relief, the court should then hold ‘a full qualification hearing at which any additional evidence may be received on the issue of eligibility.’ ” (Id. at pp. 955-956.)

In Washington, the court held that checking a box on a form petition stating that the value of the stolen property is less than $950 may be sufficient to establish a prima facie case without additional evidence. (Washington, supra, 23 Cal.App.5th at p. 953.) The defendant in Washington filed his own handwritten petition stating the value of the property was $450. The petition did not include any additional information or description of the property. The court held that the petition was sufficient to establish a prima facie basis for relief. The court’s conclusion was based in part on the fact that the Los Angeles County form petition that could have been used in the case contained a box stating, “The amount in question is less than $950.” The form petition did not contain any other space in which to describe the property or provide additional information about its value. (Id. at p. 955.) The court found that under such circumstances, checking the box on the form petition would have been sufficient. Otherwise, “[n]o petitioner would meet the prima facie burden without crafting his or her own petition in derogation of the form adopted by the court, or modifying the official form to include handwritten statements in the margins or attaching additional paperwork.” (Id. at p. 955.)

The Santa Clara County form petition that Abela used in this case did not contain a box to check indicating that the value of the property was less than $950, nor did it contain any space in which to provide a description of the property. Abela notes that he filled in every available box on the form petition, checked all of the necessary squares and requested a hearing. Citing Washington as support, Abela argues that his proper completion of the form petition was sufficient to establish a prima facie basis for relief.

We agree with the Washington court that “[i]t is unrealistic to expect Proposition 47 petitioners, who are often self-represented either from prison or upon release, to marshal evidence at the initial stage to establish that the stolen property at issue in their convictions did not exceed $950 at the time it was stolen.” The Washington court further stated: “[i]f the prosecution chooses to oppose a Proposition 47 petition on the ground the value of the stolen property exceeds $950, and this fact is not established by the record of the initial plea or conviction, the superior court should . . . hold an evidentiary hearing at which the value of the property taken may be considered.” (Washington, supra, 23 Cal.App.5th at p. 957, italics added.)

However, in the present case, although Abela fully completed his form petition, he is not entitled to an evidentiary hearing under Washington. As the trial court noted in denying his petition, the record in this case adequately established that the value of the stolen property was greater than $950. Specifically, the record includes a detailed list of all of the items that were stolen and their individual values. The estimated total value of the stolen property was $10,000, $6,000 of which was a vintage car. As a result, despite the fact that Abela adequately completed the form petition, his conviction for felony receiving stolen property is not eligible for reclassification to a misdemeanor pursuant to section 1170.18. As established by the record, the value of the stolen property exceeded $950.

V. DISPOSITION
VI.
The order is affirmed.

_______________________________

Greenwood, P.J.

WE CONCUR:

_____________________________________

Grover, J.

______________________________________

Danner, J.

People v. Abela

No. H045740

Case Number: BC586297 Hearing Date: June 26, 2019 Dept: 4A

Motion for Leave to File First Amended Complaint

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On June 26, 2015, Plaintiff Eleanor K. Bryant (“Plaintiff”) filed a complaint against Defendant¿Complete P.T., Pool & Land Physical Therapy, Inc.¿(“Defendant”) alleging negligence for a slip and fall incident.

On March 12, 2019, the Court denied Plaintiff’s motion for leave to file a first amended complaint because Plaintiff’s counsel did not state when the facts giving rise to the amended allegations were discovered or why the request was not made earlier pursuant to California Rules of Court Rule 3.1324(b)(3) and (4), even though it appeared that Plaintiff died in 2017. The Court also noted that granting the motion after a long, unwarranted, and unexcused delay would present added cost and increased burden of discovery on Defendant.

On April 10, 2019, Plaintiff filed a motion for relief to file a first amended complaint.

Trial is set for August 23, 2019.

PARTY’S REQUEST

Plaintiff requests that the Court issue an order granting Plaintiff relief to file a first amended complaint pursuant to California Code of Civil Procedure section 473, subdivision (b).

LEGAL STANDARD

California Code of Civil Procedure section 473, subdivision (b) states in relevant part: “The court may, upon terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

Section 473(b) also provides: “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” This mandatory relief provision “acts as a ‘narrow exception to the discretionary relief provision for default judgments and dismissals.’” (Rodriguez v. Brill (2015) 234 Cal. App. 4th 715, 723). It does not provide mandatory relief for anything other than defaults, default judgments and dismissals. (Id.).

DISCUSSION

The Court initially notes that Plaintiff’s counsel does not seek to vacate a default, default judgment or dismissal entered against Plaintiff. Accordingly, mandatory relief is not available based simply on an affidavit of attorney fault. Instead, Plaintiff necessarily must seek permissive relief to file an amended complaint under Code of Civil Procedure section 473(b), which requires a showing that a “. . . proceeding [has been] taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Ibid. (emphasis added).)

Plaintiff argues that the Court should grant leave for Plaintiff to file a first amended complaint to allege a cause of action for wrongful death by detailing a series of mistakes and oversights by Plaintiff’s attorneys. First, Plaintiff argues that her initial attorney, Dmitry Aristov, failed to file a first amended complaint due to an unawareness of the relevant deadlines. (Motion, p. 5:9-5:11; Pedone Decl., ¶ 11.) Plaintiff also argues that one of her attorneys, Alexaner Escandari, became injured and was unable to engage in his daily professional duties so he could not file the amended complaint, and that subsequent counsel did not discover Mr. Aristov’s mistake until January 28, 2019. (Motion, p. 5:11-5:13; Pedone Decl., ¶¶ 5-6.) Plaintiff further argues that her subsequent attorney, Hyak Grigoryan, failed to explain the delay in filing the first amended complaint, resulting in the Court denying Plaintiff’s motion for leave to file a first amended complaint on March 12, 2019. (Motion, p. 5:13-5:18; Pedone Decl., ¶ 12.) Plaintiff claims that these facts constitute inadvertence and excusable neglect and justify discretionary relief from the failure to file an amended complaint. (Motion, p. 5:20-5:21.)

The Court finds that Plaintiff has not shown that the neglect that led to the failure to file an amended complaint – whether as a matter of right or with leave of Court — was excusable. Mr. Aristov’s neglect to file an amended complaint as a matter of right is inexcusable as there are no justifying circumstances cited by Plaintiff. Plaintiff relies on Elston v. City of Turlock (1985) 38 Cal.3d 227, 235 (superseded by statute on other grounds) for the proposition that an attorney is only required to show that he or she had no personal knowledge or notice of an applicable deadline for section 473 relief to be granted. (Motion, p. 5, fn. 1.) However, Plaintiff fails to show that Mr. Aristov did not have personal knowledge or notice of the deadline to file an amended complaint.

While the Court sympathizes with Mr. Escandari’s ailments, the medical problems of Plaintiff’s prior counsel do not excuse Mr. Grigoryan’s unjustified neglect in failing to explain the delay in connection with Plaintiff’s motion seeking leave to file the first amended complaint, and it was this deficiency – not Mr. Escandari’s medical ailments – that prompted the Court’s denial of Plaintiff’s motion for leave to file a first amended complaint on March 12, 2019. Additionally, Mr. Grigoryan’s failure to explain the delay in filing the first amended complaint in the motion denied on March 12, 2019 is inexcusable as there are no facts presented to the Court to justify this gap in his advocacy.

Plaintiff also argues that she had difficulties in obtaining necessary medical records, which were finally obtained in September 2018. (Reply, p. 1:19-1:24; Pedone Decl., ¶ 10.) This, Plaintiff argues, is why Plaintiff could not reasonably amend the complaint to add a wrongful death cause of action until the review of these medical records had been completed. (Ibid.). Again, even if the Court accepts the premise that the wrongful death action could not have been discovered without a review of the medical records, this does not account for the long delay in seeking leave to amend after September 2018 or the wholly inadequate motion to amend that was filed on Plaintiff’s behalf.

Assuming, arguendo, that the late records review justifies the late filing date for the motion to amend, the Court agrees with Defendant that Plaintiff is effectively asserting a motion for reconsideration of the Court’s March 2019 ruling on that prior motion. Code of Civil Procedure 473(b) “cannot be used to remedy attorney mistakes, such as the failure to provide sufficient evidence” in connection with a prior motion. (Wiz Tech. Inc. v. Coopers & Lybrand LLP (2003) 106 Cal. App. 4th 1, 17). But this is precisely what Plaintiff is arguing. She contends that, while the initial motion did not offer a sufficient excuse for the late filing, Plaintiff has now complied with the procedural requirements for a motion to amend a pleading and there would be no prejudice to Defendant if the motion was granted. (Motion, pp. 6:26-7:16; Reply, pp. 2:23-4:10.) Viewed as a motion for reconsideration, Plaintiff’s instant motion is untimely pursuant to California Code of Civil Procedure section 1008, subdivision (a), because it was filed nearly a month after the Court’s March 12, 2019 denial of the motion to amend. Because it was late, the Court declines to reconsider the merits of Plaintiff’s prior motion for leave to file an amended complaint.

Therefore, the motion is DENIED.

Plaintiff is ordered to give notice.

Case Number: BC691372 Hearing Date: June 26, 2019 Dept: 4A

Motion to Compel Deposition and Production of Documents

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On January 23, 2018, Plaintiffs Candice Coykendall and Brandon Robinson (“Plaintiffs”) filed a complaint against Defendant Ulivaldo Chavez (“Defendant”) alleging motor vehicle and general negligence for a vehicle collision that occurred on December 5, 2016.

On April 12, 2019, Plaintiffs filed a motion to compel Defendant’s appearance at a deposition and Defendant’s responses to request for production of documents.

Trial is set for October 18, 2019.

PARTIES’ REQUESTS

Plaintiffs ask the Court for an order compelling Defendant to appear and testify at a deposition and produce documents specified in Plaintiffs’ deposition notice within ten days of the hearing on this motion.

Plaintiffs also request that the Court award $3,736.65 in monetary sanctions against Defendant and/or Defendant’s counsel of record for their abuse of the discovery process.

Defendant requests the Court for $525.25 in monetary sanctions against Plaintiffs and their counsel of record for bringing a frivolous motion.

LEGAL STANDARD

California Code of Civil Procedure section 2025.450, subdivision (a) provides:¿ “If, after service of a deposition notice, a party to the action¿. . .¿, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document¿. . .¿described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document¿. . . described in the deposition notice.”¿¿

California Code of Civil Procedure section 2025.450, subdivision (b) states, “A motion under subdivision (a) shall comply with both of the following:

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. . .

The motion shall be accompanied by a meet and confer declaration under Section 2016.040,¿or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

A court may grant sanctions against a party who brings a motion unsuccessfully without substantial justification as such a motion is an abuse of the discovery process. (Code Civ. Proc. §§ 2023.010, subd. (h), 2023.030, subd. (a).)

DISCUSSION

The Court initially notes that Plaintiffs have not filed a satisfactory meet and confer declaration with their motion. Plaintiffs filed such a meet and confer declaration with their reply papers. Despite Plaintiffs’ failure to abide by the mandates of California’s Code of Civil Procedure, the Court addresses the motion on the merits.

On January 24, 2019, Plaintiffs served on Defendant a notice of taking Defendant’s deposition and request for production of documents and set the deposition for February 26, 2019. (Berkley Decl., ¶ 5, Exh. 1.) On February 22, 2019, Defendant sent an objection to the February 26, 2019 deposition due to the deposition notice being improperly served on Defendant at his former residence. (Berkley Decl., ¶ 8, Exh. 4.)

After receiving available dates from Defendant, Plaintiffs serve a second deposition notice setting Defendant’s deposition for a date when he and his counsel were not available. (Berkley Decl., Exh. 6-7, 9). Again, Defendant objects so Plaintiffs’ served a third deposition notice, this time scheduling the deposition on one of the dates provided by defense counsel as an available day. (Berkley Decl., Exh. 8).

On March 12, 2019, Plaintiffs served on Defendant an amended deposition notice and request for production of documents and set the deposition for April 5, 2019 after Defendant indicated that April 5, 2019 was a satisfactory date. (Berkley Decl., ¶¶ 9-10, 12; Exh. 5-6, 8.) On April 2, 2019, defense counsel sent an email stating that Defendant would “need to reschedule” the April 5, 2019 deposition because his counsel would be in trial. (Berkley Decl., ¶ 14, Exh. 10.) On April 4, 2019, Defendant repeated the April 2, 2019 correspondence through facsimile and U.S. Mail. (Berkley Decl., ¶ 15.). Defendant did not provide alternate dates, but neither did Plaintiffs ask for new dates or even just set a new deposition date as their deposition notice announced they would do in the event of a scheduling conflict. (Berkley Decl., Exh. 8 at p. 2 [“If our office docs not receive alternative dates within five days of canceling this deposition, we will select a date convenient for Plaintiffs’ counsel.“). Instead, Plaintiffs simply filed a motion to compel the deposition on April 12, 2019.

Plaintiffs argued in their moving papers that good cause exists to grant Plaintiffs’ motion to compel because Defendant has yet to appear at a deposition or provide alternative dates for the deposition, despite Plaintiffs satisfactory deposition notices. (Motion, p. 7:19-7:22.) It appears from the reply brief, however, that Defendant’s deposition was taken on June 12, 2019. Thus, the motion to compel is moot and all that remains are the parties’ competing requests for sanctions.

The Court denies Plaintiffs’ request for sanctions finding that Defendant’s positions in opposition to Plaintiffs’ efforts to take his deposition were not without substantial justification.

The Court finds Defendant was not required to comply with the January 24, 2019 deposition notice because Defendant raised a timely objection to it, based on the fact that, in attempting to serve Defendant directly before he appeared in the action, Plaintiffs sent the deposition notice to Defendant’s former residence, rather than his current one. (Opposition, pp. 2:25-3:3.) Plaintiffs argue that the objection is without merit because the January 24, 2019 deposition notice was served on the same location where Defendant was served with the summons and complaint. (Reply, p. 4:2-4:8.) Plaintiffs also attack the objection as invalid because Defendant did not challenge service of process of the summons and complaint, effectively validating service of documents at that address. (Ibid.) The Court does not agree. Defendant’s decision not to challenge service at the wrong address does not mean that subsequent service at that same wrong address is valid. Defendant’s choice to answer the complaint as opposed to quash the service of summons may have been a tactical litigation strategy. As such, Plaintiffs’ January 24, 2019 deposition notice could not be the basis for granting the relief Plaintiffs seek.

Similarly, for the March 7, 2019 deposition notice, Plaintiffs selected a date other than the specific dates given by Defendant as days when he could sit for his deposition and apparently did so without consulting with defense counsel about why a different date needed to be selected. The Court finds that Defendant’s resistance to this deposition schedule was clearly justified.

Turning to the March 12, 2019 notice, the Court finds that, although defense counsel indicated an inability to appear for deposition on a date that was previously cleared as open, Defendant did not refuse to appear but only notified Plaintiffs that the date would have to be rescheduled because of defense counsel’s trial schedule. While the Court may question why defense counsel offered a date when she would be in trial, this situation could have been remedied if Plaintiff’s counsel had met and conferred to secure a new date rather than just filing a motion to compel. Indeed, a new date was scheduled soon thereafter allowing Defendant’s deposition to be taken and rendering the motion to compel moot.

Accordingly, the Court cannot find that Defendant has abused the discovery process or taken positions that are without substantial justification in delaying Plaintiffs’ deposition. Defendant has not failed to appear for examination, or to proceed with it, or to produce for inspection any document¿identified in a valid deposition notice. There is no basis to compel Defendant’s deposition or to order further compliance with Plaintiffs’ deposition notice.

To the contrary, the Court finds that Plaintiffs’ motion was brought without substantial justification and before any informal effort to resolve the dispute by rescheduling the deposition. Thus, the Court finds that it is Defendant who is entitled to sanctions . against Plaintiffs pursuant to California Code of Civil Procedure sections 2023.030, subdivision (a), and 2023.010, subdivision (h).

Defendant requests $525.25 in monetary sanctions for spending two hours reviewing Plaintiffs’ motion, researching, and drafting an opposition, and one hour appearing at the hearing all at a rate of $143.75 an hour, plus one $94.00 court call fee. The Court finds this to be a reasonable amount of sanctions to be imposed against Plaintiffs and Plaintiffs’ counsel of record, jointly and severally.

Therefore, Plaintiffs’ motion is DENIED.

Plaintiffs’ request for monetary sanctions is DENIED.

Defendant’s request for monetary sanctions is GRANTED.

The Court orders Plaintiffs and Plaintiffs counsel of record to pay Defendant $525.25 in monetary sanctions, jointly and severally, within 20 days of this order.

Defendant is ordered to give notice of this ruling.

Case Number: BC722751 Hearing Date: June 26, 2019 Dept: 4A

Motion to Compel Deposition and Production of Documents

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On September 24, 2018, Plaintiff Matthew Lee (“Plaintiff”) filed a complaint against Defendant Edward Weilbacher (“Defendant”) alleging motor vehicle and general negligence for a vehicle collision that occurred on October 4, 2016.

On April 15, 2019, Plaintiff filed a motion to compel Defendant’s appearance at a deposition and Defendant’s responses to a request for production of documents.

Trial is set for March 9, 2019.

PARTIES’ REQUESTS

Plaintiff asks the Court for an order compelling Defendant to appear and testify at a deposition and produce documents specified in Plaintiff’s deposition notice within ten days of the hearing on this motion.

Plaintiff also requests that the Court order payment of $4,135.55 in monetary sanctions by Defendant and/or Defendant’s counsel of record for their abuse of the discovery process.

Defendant requests the Court for an award of $4,135.55 in monetary sanctions against Plaintiff and his counsel of record for bringing a frivolous motion.

LEGAL STANDARD

California Code of Civil Procedure section 2025.450, subdivision (a) provides:¿ “If, after service of a deposition notice, a party to the action¿. . .¿, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document¿. . .¿described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document¿. . . described in the deposition notice.”¿¿

California Code of Civil Procedure section 2025.450, subdivision (b) states, “A motion under subdivision (a) shall comply with both of the following:

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. . .

The motion shall be accompanied by a meet and confer declaration under Section 2016.040,¿or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

A court may grant sanctions against a party who brings a motion unsuccessfully without substantial justification as such a motion is an abuse of the discovery process. (Code Civ. Proc. §§ 2023.010, subd. (h), 2023.030, subd. (a).)

DISCUSSION

The Court initially notes that Plaintiff filed a satisfactory meet and confer declaration detailing Plaintiff’s efforts to resolve the issues in this motion with Defendant without Court intervention. (Berkley Decl., ¶ 16, Exh. 9.)

On February 15, 2019, Plaintiff served on Defendant a notice of taking Defendant’s deposition and request for production of documents and set the deposition for March 26, 2019. (Berkley Decl., ¶ 10, Exh. 6.) On March 26, 2019, Defendant failed to appear at the deposition and Plaintiff took a Certificate of Non-Appearance. (Berkley Decl., ¶ 14, Exh. 7.)

Defendant argues that, despite proper service of the February 15, 2019 deposition notice, Defendant’s counsel did not receive the notice in the mail. (Opposition, p. 4:13-4:14.) Defendant also argues that Plaintiff’s follow-up phone calls did not reach the correct person until March 25, 2019, when Defendant’s counsel informed Plaintiff that the deposition would have to be rescheduled. (Opposition, p. 4:14-4:17.) Defendant contends that his counsel “tried to reschedule” but has provided no evidence of such an effort. (Id., p. 5:21).

The Court finds Defendant’s purported objection to the deposition notice to be both unmeritorious and untimely. Defendant has submitted no evidence indicating that Defendant did not receive notice of the March 26, 2019 deposition, nor any evidence that he tried to reschedule the deposition after cancelling it on March 25, 2019. Further, Defendant’s contention that Plaintiff failed to meet and confer is without support.

Plaintiff requests $4,135.55 in monetary sanctions against Defendant and/or Defendant’s counsel of record. (Berkley Decl., ¶ 21.) This consists of one hour meeting and conferring, a half hour for a notice of first continuance of deposition, a half hour for a notice of second continuance of deposition, three hours for the motion, one and a half hour for reviewing Plaintiff’s opposition, an hour for drafting the reply and three hours for appearing at the hearing for this motion, plus one $61.65 filing fee and one $398.90 Certificate of Non-Appearance. (Berkley Decl., ¶¶ 15, 18, 20.) Plaintiff’s counsel’s hourly rate is $350.00 an hour. Berkley Decl., ¶ 19.)

Plaintiff’s requested sanctions amount is unreasonable. Rather, the Court finds $1,660.55 ($300/hr. X 4 hrs. plus one $61.65 filing fee plus one $398.90 Certificate of Non-Appearance) to be a reasonable amount of monetary sanctions for bringing this motion.

Therefore, Plaintiff’s motion is GRANTED.

Defendant’s request for sanctions is DENIED.

The Court orders Defendant to appear at and testify at a deposition and produce documents pursuant to the February 15, 2019 deposition notice within 30 days of this order.

The Court also orders Defendant and Defendant’s counsel of record to pay Plaintiff $1,660.55, jointly and severally, within 30 days of this order.

Plaintiff is ordered to give notice.

Filed 5/2/19 Osahon v. U.S. Bank Nat. Assn. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ETINOSA OSAHON,

Plaintiff and Appellant,

v.

U.S. BANK NATIONAL ASSOCIATION et al.,

Defendants and Respondents.

B286781

(Los Angeles County

Super. Ct. No. BC553995)

APPEAL from a judgment of the Superior Court of Los Angeles County. Elizabeth Lippit, Judge. Affirmed.

Stonecroft Attorneys, and Christian I. Oronsaye for Plaintiff and Appellant.

Wright, Finlay & Zak, Jonathan D. Fink and Kristina M. Pelletier for Defendants and Respondents.

________________________________

Defendants U.S. Bank National Association, Quality Loan Service Corporation, Select Portfolio Servicing, Inc., and Bank of America, N.A., commenced foreclosure proceedings after plaintiff Etinosa Osahon ceased payments on the mortgage for his home. Osahon offered to avoid foreclosure through a short sale, but the sale did not happen and his home was eventually sold at a foreclosure sale. Osahon filed suit, asserting a host of claims. The trial court sustained a demurrer to the first amended complaint without leave to amend and entered judgment of dismissal. We reject Osahon’s claims of error. We discharge two outstanding orders to show cause and affirm.

BACKGROUND

In their briefs on appeal, both parties cite documents that were part of a motion for summary judgment on the original complaint. The demurrer at issue here was directed to the first amended complaint (FAC), which Osahon obtained permission to file while the summary judgment motion was pending. The motion for summary judgment was taken off calendar. In reviewing the court’s order sustaining the demurrer, we may not consider these documents outside the FAC. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482, 483, fn. 5 (Arce) [ignoring “voluminous record” on appeal from order sustaining demurrer because court’s review “must be based on the properly pleaded factual allegations in the complaint and the facts that may be properly judicially noticed”].)

1. Factual Allegations

Osahon purchased the property at issue in 2005 for $270,000, securing a primary mortgage for $216,000 from U.S. Bank’s predecessor and a second mortgage for $54,000 from Bank of America. He stopped making payments in 2012.

No date is specified in the FAC, but Osahon alleges that, at some point, “Plaintiff applied to Defendant, SELECT for a modification of his mortgage to a lower affordable amount as provided under the Home Affordable Modification Program. However, Plaintiff was informed by agents of said Defendant that he did not qualify for a modification and his application was denied.”

The FAC goes on to allege that, “[i]n a bid to maintain his credit rating and as an alternative to foreclosure as provided for under the Home Affordable Foreclosure Alternatives (HAFA), Plaintiff applied to Defendant, SELECT and offered to conduct a short-sale of the subject property whereby the subject property would be sold for $180,000 to an interested third party (who was already secured), thereby preserving Plaintiff’s credit and at the same time affording Defendants an opportunity to recoup part of their loan.”

While the parties discussed the short sale, Select Portfolio recorded a notice of default on February 11, 2014, without informing Osahon of any default. Then, in April 2014, Osahon “opened up discussions” with Select Portfolio and requested a “loan modification and/or short sale.” While “discussions and/or the application for loan modification and/or short sale, were ongoing,” Select Portfolio recorded a notice of trustee’s sale on May 15, 2014.

On May 27, 2014, Select Portfolio responded to Osahon’s short sale offer by requesting a higher sale price, and Osahon submitted another offer for a sale at $190,000. Select Portfolio agreed to that amount and instructed Osahon to “submit a contract and documents reflecting such an amount.”

On June 27, 2014, Select Portfolio sent Osahon a letter denying the short sale request because Osahon did not meet the requirements. Osahon’s agent called Select Portfolio and was told that “the short-sale was being approved” and “to disregard the letter” because the short sale was still being reviewed.

Around one month later, on July 31, 2014, Select Portfolio agreed to conclude the short sale on several conditions, including that Osahon obtain approval of the short sale from Bank of America as the second mortgage holder, and submit an updated HUD-1 Closing Statement from the escrow company by noon the following day. Osahon provided the requested documents the same day.

Also on the same day (July 31, 2014), Select Portfolio’s appraiser contacted Osahon’s agent to request a walkthrough of the property prior to closing, and Osahon agreed. However, Osahon was in a car accident and could not give the appraiser access to the property for the walkthrough. No walkthrough ever occurred. Osahon contacted Select Portfolio the next day (August 1, 2014). He was told Select Portfolio would no longer agree to the short sale because the property was scheduled for a foreclosure sale on August 11, 2014, and there was not enough time to approve a short sale and close the deal before the foreclosure date.

Select Portfolio thereafter refused to talk to Osahon to conclude the short-sale transaction. The foreclosure sale did not take place until a year and a half later, on March 29, 2016.

2. Procedural Background

Osahon filed the original complaint on August 7, 2014, four days before the foreclosure sale was first scheduled to take place. In October 2015, defendants filed a motion for summary judgment on the original complaint. That motion was apparently pending when the property was sold at the foreclosure sale in March 2016. Defendants withdrew the motion and filed a new motion for summary judgment in October 2016. In response, Osahon filed a motion for leave to file the FAC, which the trial court granted. The motion for summary judgment was taken off calendar.

The FAC alleges 15 causes of action: (1) negligence; (2) fraud; (3) cancel trustee’s deed upon sale; (4) set aside trustee’s sale; (5) wrongful foreclosure; (6) breach of contract; (7) breach of implied covenant of good faith and fair dealing; (8) promissory estoppel; (9) specific performance; (10) unjust enrichment; (11) violation of Business and Professions Code section 17200, et seq.; (12) quiet title; (13) slander of title; (14) declaratory relief; and (15) injunctive relief. Defendants demurred to all of the claims. Osahon voluntarily dismissed the unjust enrichment and injunctive relief claims. The trial court sustained a demurrer to the rest of the claims without leave to amend. The court entered judgment of dismissal with prejudice, and Osahon appealed.

DISCUSSION

I. We Have Jurisdiction to Consider Osahon’s Appeal; the Orders to Show Cause Are Discharged
II.
Two orders to show cause are pending. We issued the first order because the appellate record did not contain a judgment following the dismissal of Osahon’s complaint. In response to the order, Osahon provided a notice of entry of judgment filed September 27, 2017, and the judgment itself, filed September 19, 2017. We order the record augmented to include these documents. (Cal. Rules of Court, rule 8.155(a)(1)(A).) The order to show cause on this basis is discharged.

We issued the second order to show cause because it still was not clear whether the judgment was final and appealable. The problem arose because the trial court consolidated two civil cases and an unlawful detainer case involving the property: (1) Etinosa Osahon v. U.S. Bank National Association, Quality Loan Service Corp., Select Portfolio Servicing, Bank of America National Association, and Leon Reingold, Los Angeles County Superior Court, case No. BC553995 (the case pending in the current appeal); (2) Amoni Oyin-Obi v. Etinosa Osahon, U.S. Bank National Association, Select Portfolio Servicing, and Bank of America National Association, Los Angeles County Superior Court, case No. BC602559 (the Oyin-Obi case); and (3) Leon Reingold v. Etinosa Osahon, Los Angeles County Superior Court, case No. 16B01606 (the Reingold case).

The Oyin-Obi case was filed by the proposed buyer Osahon had located for the short sale. The parties stipulated to consolidate the present case and the Oyin-Obi case “for all intents and purpose,” in order “to avoid hardship, duplicate expenses and for the sake of judicial economy.” The trial court ordered the cases consolidated.

The Reingold case was an unlawful detainer proceeding filed by the buyer in the foreclosure sale. Osahon filed a motion and ex parte application to consolidate the Reingold case with the present case to “avoid repetitive trials of the same common issues, avoid unnecessary costs and delays to the Court and to all of the parties, and eliminate the risk of inconsistent adjudications.” Osahon also noted in this motion that he had added Reingold as a defendant in the present case. The court granted the ex parte request in a minute order, without specifying the scope of the consolidation, and stayed the Reingold case. The FAC caption indicates the three cases were “Consolidated for all Proceedings.”

The judgment of dismissal at issue in the present appeal resolved Osahon’s claims against defendants, but left unresolved the claims Osahon asserted against Reingold in the present case after Osahon added him as a defendant. The judgment also did not resolve claims asserted in the two other actions, specifically the claims Oyin-Obi asserted against defendants and Osahon in the Oyin-Obi case, and the unlawful detainer claim Reingold asserted against Osahon in the Reingold case. The trial court has since stayed the remaining proceedings pending the outcome of this appeal.

Under the “ ‘one final judgment’ ” rule, “an order or judgment that fails to dispose of all claims between the litigants is not appealable under Code of Civil Procedure section 904.1, subdivision (a).” (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 436 (Nguyen).) The question is whether the judgment of dismissal resolving Osahon’s claims against defendants is an appealable final judgment, in light of the consolidation of these cases and the remaining issues involving the parties.

“Code of Civil Procedure section 1048, subdivision (a), authorizes the trial court, when appropriate, to ‘order a joint hearing or trial’ or to ‘order all the actions consolidated.’ Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment.” (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147 (Hamilton).)

Osahon and defendants contend the court consolidated the cases only for trial, thereby rendering the judgment final as to them. Although the FAC caption indicated the cases were consolidated “for all proceedings” (see Hamilton, supra, 22 Cal.4th at pp. 1148-1149), the trial court’s order did not clearly specify the scope of consolidation. The FAC and subsequent pleadings continued to identify multiple case numbers, with the instant case designated as the “lead” case. The defendants’ demurrer proceeded as if this case remained distinct; the record does not indicate there was any attempt to coordinate or combine challenges to the relevant complaints. Each action was brought by different plaintiffs. The parties in the three actions overlap but they are not identical in each suit. These facts suggest consolidation was for procedural purposes or trial only, rather than a true merger of the actions. (Committee for Responsible Planning v. City of Indian Wells (1990) 225 Cal.App.3d 191, 196–197 [distinguishing “ ‘complete consolidation,’ ” which may occur when the parties are identical and the claims could have been joined, from “ ‘consolidation for trial,’ ” where “ ‘the pleadings, verdicts, findings and judgments are kept separate; the actions are simply tried together for the sake of convenience and judicial economy’ ”].)

Further, the trial court issued a separate judgment in this case following the order sustaining defendants’ demurrer, indicating the parties and court appeared to anticipate separate verdicts or sets of findings, and separate judgments as to each action. We thus agree with the parties that the three actions were consolidated for trial only. The record before us does not reflect that any part of the other actions was implicated in the demurrer litigation in this case. There are no remaining causes of action between Osahon and defendants in this action. We therefore conclude Osahon’s appeal from the judgment does not violate the one final judgment rule. (Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 701–703 [where actions were consolidated for trial only the judgment following the trial of one of the actions was final and the appeal did not violate the one final judgment rule].)

The order to show cause is discharged.

III. Standard of Review
IV.
We review the sustaining of a demurrer de novo. Assuming all facts properly pleaded or reasonably inferred from the pleaded facts are true, we must determine whether those facts state a claim under any legal theory. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751 (Scott).) We do not assume the truth of “mere contentions, deductions, or conclusions of law.” (Ibid.) We may consider facts the trial court judicially noticed. “Indeed, a demurrer may be sustained where judicially noticeable facts render the pleading defective [citation], and allegations in the pleading may be disregarded if they are contrary to facts judicially noticed.” (Ibid.)

We review the denial of leave to amend for abuse of discretion, evaluating “ ‘whether the complaint might state a cause of action if a defect could reasonably be cured by amendment. If the defect can be cured, then the judgment of dismissal must be reversed to allow the plaintiff an opportunity to do so. The plaintiff bears the burden of demonstrating a reasonable possibility to cure any defect by amendment. [Citations.] A trial court abuses its discretion if it sustains a demurrer without leave to amend when the plaintiff shows a reasonable possibility to cure any defect by amendment. [Citations.] If the plaintiff cannot show an abuse of discretion, the trial court’s order sustaining the demurrer without leave to amend must be affirmed. [Citation.]’ ” (Westamerica Bank v. City of Berkeley (2011) 201 Cal.App.4th 598, 607).)

III. The Record Is Adequate for Our Review

Osahon did not provide a reporter’s transcript or suitable substitute for the hearing on defendants’ demurrer. (See Cal. Rules of Court, rules 8.134 [agreed statement], 8.137 [settled statement].) However, we reject defendants’ contention that the absence of the reporter’s transcript precludes our review. An appellant bears the “ ‘burden to provide a reporter’s transcript if “an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court. . . .” ’ ” (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483 (Flannery); see Cal. Rules of Court, rule 8.120(b).) A reporter’s transcript may not be necessary if the appeal involves a legal issue requiring de novo review. (Ibid.) Here, not only did the trial court’s order set out reasons why the court sustained the demurrer, but our review is de novo, so a transcript of the oral proceedings on demurrer is unnecessary for our evaluation of the sufficiency of Osahon’s FAC.

The absence of a reporter’s transcript could be more problematic for the trial court’s discretionary denial of leave to amend, which the court did not explain in its order sustaining the demurrer. (Flannery, supra, 5 Cal.App.5th at p. 483 [“In many cases involving the substantial evidence or abuse of discretion standard of review, however, a reporter’s transcript or an agreed or settled statement of the proceedings will be indispensable.”].) But we conclude below that Osahon forfeited any challenge to the denial of leave to amend by failing to adequately address it in his briefs on appeal, so we need not address the sufficiency of the record on this issue.

IV. We Will Not Reverse the Judgment for Any Failure to Meet and Confer

Osahon argues the judgment should be reversed because defendants failed to meet and confer before filing their demurrer, in violation of Code of Civil Procedure section 430.41. That section generally provides, “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).)

We need not mire ourselves in the details of defendants’ allegedly inadequate meet and confer efforts. Code of Civil Procedure section 430.41, subdivision (a)(4) provides, “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” Subdivision (f) also provides, “Nothing in this section affects appellate review or the rights of a party pursuant to Section 430.80.” Even if defendants’ meet and confer efforts were insufficient, the trial court could not have overruled the demurrer on that basis and we will not reverse the judgment of dismissal for this reason.

V. Osahon Failed to State Any Grounds for Relief

Despite his numerous causes of action in the FAC, Osahon confines his substantive arguments on appeal to four general points: (1) the trial court should not have applied the “tender rule” to bar his claims; (2) construing the FAC “[a]s a [w]hole,” he stated a valid cause of action for violation of the Homeowner’s Bill of Rights (Civ. Code, §§ 2923.4, et seq.; HBOR); (3) defendants breached a duty of care owed to him and committed fraud in the short sale process; and (4) Osahon is entitled to void the foreclosure sale. We confine our opinion to addressing these specific contentions, which we reject. Osahon has forfeited any other challenges to the judgment by failing to raise them in his briefs on appeal. (Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 290, fn. 2 (Foxen).)

A. We Need Not Address the Application of the Tender Rule

The trial court concluded Osahon failed to allege he could tender his debt, which barred his claims to void or cancel the trustee’s deed upon sale, to set aside the trustee’s sale, to quiet title, and for wrongful foreclosure. Osahon does not address these claims, but instead argues at length that the tender rule does not bar a claim under the HBOR. (See Valbuena v. Ocwen Loan Servicing, LLC (2015) 237 Cal.App.4th 1267, 1273 (Valbuena) [tender not required for suit alleging violation of HBOR].)

Osahon’s argument is misplaced because the trial court did not bar any HBOR claim for failure to tender the outstanding debt. Instead, the court found Osahon failed to plead a separate HBOR claim, and even if he had, it would not provide grounds to quiet title or set aside the sale because his only available remedy after the foreclosure sale was damages. (Civ. Code, § 2924.12, subd. (b).) In any case, we need not address his tender argument because we likewise conclude he has failed to allege an HBOR claim for other reasons (albeit different than the trial court).

Osahon’s failure to address the tender rule beyond his HBOR claim forfeited any challenge to the correctness of the trial court’s application of the tender rule to the other causes of action. (Foxen, supra, 6 Cal.App.5th at p. 290, fn. 2.)

B. Osahon Has Not Stated a Claim for Violation of the HBOR

Effective January 1, 2013, the HBOR “was enacted ‘to ensure that, as part of the nonjudicial foreclosure process, borrowers are considered for, and have meaningful opportunity to obtain, available loss mitigation options, if any, offered by or through the borrower’s mortgage servicer, such as loan modifications or other alternatives to foreclosure.’ ([Civ. Code,] § 2923.4, subd. (a).)” (Valbuena, supra, 237 Cal.App.4th at p. 1272.)

While Osahon discussed the HBOR in the FAC, he did not actually allege a cause of action for violation of the HBOR. Yet, the keystone of his appeal is an alleged violation of the “ ‘dual tracking’ ” provision in HBOR, Civil Code section 2923.6. Dual tracking “occurs when a bank forecloses on a loan while negotiating with the borrower to avoid foreclosure.” (Valbuena, supra, 237 Cal.App.4th at p. 1272.) In accordance with settled principles of review, we examine the FAC to see if the allegations state a valid HBOR dual-tracking violation. (Scott, supra, 214 Cal.App.4th at p. 751.)

As it was in effect at the time of foreclosure proceedings in this case, Civil Code section 2923.6 “sought to encourage loan modifications as an alternative to foreclosures.” (Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1116 (Schmidt).) “It is the intent of the Legislature that the mortgage servicer offer the borrower a loan modification or workout plan if such modification or plan is consistent with its contractual or other authority.” (Civ. Code, § 2923.6, subd. (b).) To that end, the statute provided that once a borrower submitted a “complete application for a first lien loan modification,” the mortgage servicer, mortgagee, trustee, beneficiary, or other agent could not record a notice of default or notice of sale, or conduct a trustee’s sale, while the modification application was pending. (Civil Code, § 2923.6, subd. (c).) “[A]n application shall be deemed ‘complete’ when a borrower has supplied the mortgage servicer with all documents required by the mortgage servicer within the reasonable timeframes specified by the mortgage servicer.” (Civ. Code, § 2923.6, subd. (h).)

Thereafter, the foreclosing entity could only proceed if “(1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subdivision (d) has expired. [¶] (2) The borrower does not accept an offered first lien loan modification within 14 days of the offer. [¶] (3) The borrower accepts a written first lien loan modification, but defaults on, or otherwise breaches the borrower’s obligations under, the first lien loan modification.” (Civ. Code, § 2923.6, subd. (c).)

“Former section 2923.6 also required mortgage servicers, mortgagees, trustees, beneficiaries, or agents to provide borrowers with 30 days to appeal the denial of a loan modification, as well as additional time after the denial of an appeal. (See former § 2923.6, subds. (d), (e).) The statute further required that borrowers be provided ‘written notice to the borrower identifying the reasons for [the modification] denial, including’ the amount of time a borrower had to request an appeal, ‘instructions regarding how to appeal the denial,’ as well as information regarding the basis of the denial and possible other foreclosure alternatives. (Id., subd. (f).)” (Schmidt, supra, 28 Cal.App.5th at p. 1116.)

As these provisions make clear, dual-tracking is prohibited while a “complete application for a first lien loan modification” is pending. In the FAC, Osahon alleges he had applied for a loan modification at some point, but his request was denied. He alleges no further details about that process, including whether his application was “complete.” He also does not base any of his claims of wrongdoing on that loan modification application. Instead, his allegations of wrongdoing in the FAC are based on Select Portfolio’s alleged mishandling of his later offer to conduct a short sale.

While he labels that offer as an “application for loan modification and/or short sale,” he has cited no authority for treating his offer of a short sale as a “complete application for a first lien loan modification,” which would trigger the HBOR dual-tracking provisions. “Loan modification” is not defined in the HBOR, but the Legislature recognized it is one of several different types of “loss mitigation options” or “foreclosure prevention alternatives” available to borrowers in the nonjudicial foreclosure process. (See Civ. Code, § 2923.4 [“The purpose of the act that added this section is to ensure that, as part of the nonjudicial foreclosure process, borrowers are considered for, and have meaningful opportunity to obtain, available loss mitigation options, if any, offered through the borrower’s mortgage servicer, such as loan modification or other alternatives to foreclosure.” (Italics added.)]; see also id., § 2920.5, subd. (b) [defining “[f]oreclosure prevention alternative” as “a first lien loan modification or another available loss mitigation option”].) In other parts of the HBOR, the Legislature recognized a short sale as another type of “foreclosure prevention alternative.” (See, e.g., Civ. Code, § 2924.11, subd. (d) [“A mortgagee, beneficiary, or authorized agent shall record a rescission of a notice of default or cancel a pending trustee’s sale, if applicable, upon the borrower executing a permanent foreclosure prevention alternative. In the case of a short sale, the cancellation of the pending trustee’s sale shall occur when the short sale has been approved by all parties and proof of funds or financing has been provided to the mortgagee, beneficiary, or authorized agent.” (Italics added.)].)

Loan modifications and short sales both avoid foreclosure but do so in very different ways. A “loan modification” necessarily implies the continued existence of the loan, now modified, that allows the borrower to continue to pay renegotiated loan payments and stay in his or her home. (See Lueras v. BAC Home Loan Servicing, LP (2013) 221 Cal.App.4th 49, 64 (Lueras) [“ ‘[A] loan modification, which at its core is an attempt by a money lender to salvage a troubled loan, is nothing more than a renegotiation of loan terms. This renegotiation is the same activity that occurred when the loan was first originated; the only difference being that the loan is already in existence.’ ”].) At the end of the process, a lender’s “decision on [the borrower’s] application for a modification plan would likely determine whether or not [the borrower] could keep her house.” (Rossetta v. CitiMortgage, Inc. (2017) 18 Cal.App.5th 628, 641 (Rossetta); see Alvarez v. BAC Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941, 950 [HBOR “ ‘expressed a strong preference for fostering more cooperative relations between lenders and borrowers who are at risk of foreclosure, so that homes will not be lost,’ ” italics added].)

By contrast, in a short sale, “the borrower sells the home to a third party for an amount that falls short of the outstanding loan balance; the lender agrees to release its lien on the property to facilitate the sale; and the borrower agrees to give all the proceeds to the lender.” (Coker v. JPMorgan Chase Bank, N.A. (2016) 62 Cal.4th 667, 671.) After a short sale, a borrower might avoid some of the adverse effects a foreclosure sale has on his or her credit, but he or she relinquishes both the loan and the home.

By limiting the dual-tracking restrictions to “first lien loan modifications” as opposed to any loss mitigation option or foreclosure prevention alternative, the Legislature must have intended to limit the dual-tracking provisions to loan modifications that might help a borrower stay in his or her home. That necessarily excludes other types of loss mitigation options or foreclosure prevention alternatives, such as short sales. (Cf. Civ. Code, § 2923.7, subd. (a) [requiring “single point of contact” when borrower “requests a foreclosure prevention alternative”].) Citing nothing to show otherwise, Osahon’s allegations fail to state a violation of the HBOR dual-tracking provisions.

C. Osahon’s Negligence and Fraud Claims Fail

The only claims Osahon specifically addresses on the merits in his briefs on appeal are fraud and negligence. We address them together because they fail for the same reason.

“The elements of fraud are (1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.” (Lueras, supra, 221 Cal.App.4th at p. 78.) The elements of negligence are “(1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s damages or injuries.” (Id. at p. 62.)

Osahon argues defendants breached a duty of care and committed fraud by making several “[c]ontradictory and [i]nconsistent [c]ommunications” with him. Specifically, he argues that defendants “assured him that the loan modification will be approved and that they would not dual track” him, and that they “promised [him] that they would come back for a walk through of the subject property (after the initial one that was cancelled on July 31, 2014 owing to [Osahon’s] medical condition) and thereafter stopped communicating with” him.

We reject Osahon’s contention involving the appraisal walk-through because his allegations in the FAC show that defendants did not promise to return to the property for another appraisal walk-through. His exact allegations were that, when he missed the first appraisal appointment and requested that the appraiser return, the appraiser “responded that even though he had a tight schedule he would endeavor to return to conduct the walk-through.” (Italics added.) When Osahon contacted Select Portfolio the next day “to inquire about the status of the walk-through,” Select Portfolio’s relationship manager told him the short sale was off. These allegations do not show that defendants affirmatively promised to conduct another appraisal walk-through after he missed the first appointment.

Osahon does allege in the FAC that defendants “promised they would not dual track (contrary to the HBOR) the Plaintiff while the loan modification and/or short sale agreement was being considered, but that promise was untrue” because they recorded the Notice of Trustee sale on May 15, 2014. Generally, “[l]enders and borrowers operate at arm’s length. [Citations.] ‘[A]s a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money.’ ” (Lueras, supra, 221 Cal.App.4th at p. 63.) Courts are split on whether a duty arises when a lender undertakes the process of a loan modification with a borrower in default. (See Rossetta, supra, 18 Cal.App.5th at p. 638 [discussing cases “divided on the question of whether accepting documents for a loan modification is within the scope of a lender’s conventional role as a mere lender of money, or whether, and under what circumstances, it can give rise to a duty of care with respect to the processing of the loan modification application”].) A lender does owe a duty to a borrower not to make material misrepresentations of fact in the loan modification or foreclosure process. (Lueras, supra, 221 Cal.App.4th at p. 68.)

We need not address the issue of duty because, even if defendants breached a duty not to dual track the short sale process and misrepresented that it would not do so, Osahon alleged no damage resulting from any alleged breach. Osahon does not allege any specific damages in the FAC beyond the bare fact that he suffered “damages” as a result of defendants’ fraud and negligence. In his reply brief on appeal, he vaguely claims he was injured because he “invested his time and resources, [and] secured a buyer to prevent any negative rating on his credit.”

Yet, these alleged injuries had no connection to defendants’ alleged dual-tracking of the foreclosure and the short sale. As noted above, Select Portfolio canceled the short sale after Osahon failed to meet the appraiser at the property at the agreed time due to his accident. The recordation of the notice of default and notice of trustee’s sale had no impact on that. While Osahon alleges that Select Portfolio did not reschedule the appraisal because the foreclosure sale was set to go forward on August 11, 2014, the sale did not actually take place until March 29, 2016, a year and a half after the short sale discussions ended. Osahon did not allege that he lost his home—or suffer any other damage—from the recordation of the notice of default and notice of trustee’s sale during the time he was pursuing the short sale.

Finally, Osahon alleges that defendants “assured Plaintiff that they would grant and/or approve any request for such short sale and/or loan modification.” But read in the context of the other factual allegations, that promise was contingent on Osahon fulfilling several conditions, including that Osahon meet the appraiser at the agreed-upon time at the property. He failed to fulfill that condition, so he cannot show defendants’ alleged failure to complete the short sale as promised caused him to suffer any damages.

D. Osahon Is Not Entitled to Void the Foreclosure Sale

Civil Code section 2924.12 provides for injunctive relief for a violation of the HBOR that occurs prior to foreclosure and “actual economic damages” when a borrower seeks relief after foreclosure. (Civ. Code, § 2924.12, subds. (a)–(b); see Valbuena, supra, 237 Cal.App.4th at p. 1272.) Even though the foreclosure sale to Reingold occurred in 2016, Osahon argues he is still entitled to injunctive relief to void the sale because Reingold was not a bona fide purchaser. Since we have concluded Osahon has not stated a claim for violation of the HBOR, this contention necessarily fails.

VI. Osahon Has Not Shown He Should Have Been Granted to Leave to Amend

In his opening brief on appeal, Osahon requested leave to amend in a single sentence without explaining how he would amend the FAC. In his reply brief, he expanded on his request, but still failed to explain how he could amend his complaint to cure the defects outlined above. For the first time at oral argument, he cited facts contained in other portions of his opening brief to contend he should have been granted leave to amend. We find he has forfeited the issue. (Reid v. City of San Diego (2018) 24 Cal.App.5th 343, 369 [plaintiff forfeited request for leave to amend by raising it for first time in reply brief]; Brown v. Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275, 282 [cursory request for leave to amend forfeited argument that court abused discretion in denying leave to amend]; see Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1185 (Daniels) [belated request for leave to amend at oral argument forfeited issue].)

DISPOSITION

The judgment is affirmed. Respondents are awarded costs on appeal.

ADAMS, J.*

We concur:

BIGELOW, P. J.

WILEY, J.

Filed 5/2/19 P. v. Lunkin CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DESHAWN N. LUNKIN,

Defendant and Appellant.

B290518

(Los Angeles County

Super. Ct. No. SA091791)

THE COURT:*

Deshawn N. Lunkin (defendant) appeals from the trial court’s order entered following a finding that he was in violation of probation in case No. SA091791. We appointed counsel to represent him on this appeal.

Counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and requested this court to independently review the record on appeal to determine whether any arguable issues exist. On February 19, 2019, we sent defendant a letter informing him of the nature of the brief that had been filed and advising him that he had 30 days to file a supplemental brief setting forth issues he wished this court to consider. We have received no response. There is substantial evidence to support the trial court’s finding that defendant violated his probation. We affirm the trial court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2016, the People charged defendant with two counts of possessing heroin and cocaine for sale (Health & Safety Code, section 11351) one count of possessing marijuana for sale (§ 11359), one count of possessing methamphetamine for sale (§ 11378), and one count of resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). The People also alleged that defendant suffered four prior drug convictions in 2010, 2011, 2014, and 2015 (§ 11370.2).

In June 2016, defendant entered into a negotiated plea agreement under the terms of which he pleaded no contest to all counts as well as the prior drug convictions, in exchange for a sentence of nine years and four months that would be imposed but its execution stayed. After being given proper advisements, defendant entered his plea. The trial court then sentenced defendant to nine years and four months in state prison, three years of which was attributable to one of the prior drug convictions. The court then suspended the execution of that sentence and placed defendant on three years of formal probation. Defendant did not appeal.

On December 16, 2016, the trial court revoked defendant’s probation, issued a bench warrant, and set a probation revocation hearing.

In early January 2017, defendant was arrested for drug trafficking in case number SA094749.

On April 20, 2017, the trial court held the preliminary hearing in case number SA094749, combined with the probation violation hearing in the instant case. At the hearing, Detective Stauffer of the Los Angeles Police Department (LAPD) testified that on January 3, 2017, he executed a search warrant at the Royal Santa Monica Hotel, where defendant was registered as an occupant of room No. 7. Defendant’s probation included a search condition and he was detained as he left the hotel. Police found a hotel keycard for room No. 7, and $1,411 in his jacket pocket. Inside room No. 7, police found a large amount of cocaine and methamphetamine; a small amount of heroin; a digital scale with residue consistent with methamphetamine; empty plastic baggies; defendant’s driver’s license; and a vehicle rental contract in his name. Detective Stauffer testified that he believed defendant possessed the drugs for sale. He based his opinion on the amount of money recovered from defendant, the scale used to weigh individual amounts, the empty baggies used for packaging, the lack of any paraphernalia to ingest any of the drugs recovered, and the lack of any signs that defendant had ingested any drugs. At the conclusion of the combined hearing, the trial court held there was sufficient evidence to hold defendant to answer in case number SA094749. Based upon its finding in case number SA094749, the trial court found defendant in violation of the terms and conditions of his probation in the instant case.

On October 26, 2017, defendant appeared in pro per. The trial court ordered termination of defendant’s probation and imposed the previously suspended term of nine years and four months, with seven years to be served in county jail and with the remaining two years and four months of post-release mandatory supervision. The People dismissed the pending drug charges filed under case number SA094749.

On August 24, 2018, defendant filed a notice of appeal from the trial court’s October 26, 2017 order.

DISCUSSION

We conclude there is no infirmity in the proceedings resulting in defendant’s sentence upon the trial court’s finding that he violated his probation in this case. Defendant’s plea was valid: He was specifically advised of the rights he waived, specifically advised that the sentence that was imposed would be stayed unless and until he violated the terms of his probation, and was specifically advised that one of the conditions of probation was that he not violate the law. The trial court found that defendant violated his probation following a hearing that functioned as a preliminary examination in the new case and the evidentiary hearing as to the probation violation. A combined hearing is permissible. (See People v. Coleman (1975) 13 Cal.3d 867, 895 [unitary preliminary hearing-parole violation hearing satisfies due process]; People v. King (1979) 89 Cal.App.3d 506, 510-511 [same]; People v. Buford (1974) 42 Cal.App.3d 975, 981 [same].) What is more, the trial court’s finding that defendant violated his probation was supported by substantial evidence insofar as he was found in possession of illegal narcotics and the instruments used to distribute them, which an expert witness confirmed. The trial court then imposed the previously imposed but stayed sentence, which it is statutorily required to do. (Pen. Code, § 1203.2, subd. (c).) Although Senate Bill 180 eliminated the three-year prior drug conviction enhancement that comprises a portion of defendant’s sentence (Sen. Bill No. 180, Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018) and is retroactively applicable to non-final sentences (In re Estrada (1965) 63 Cal.2d 740, 742-748), defendant’s conviction became final on August 7, 2016 (the date his sentence was imposed but its execution stayed plus 60 days because he did not appeal), which was long before Senate Bill 180 took effect on January 1, 2018. (People v. Grzymski (2018) 28 Cal.App.5th 799, 806.)

Although defendant did not submit a supplemental letter on appeal, he offered several grounds for appeal in his requests for a certificate of probable cause. He argued that he is entitled to withdraw his underlying plea in this case, but he has offered no basis for doing so and we perceive none in the record. He argued that his sentencing hearing was unfair and that he is entitled to a supplemental probation report “to inform the Court” about what has happened since the time of his original sentencing, but the sentencing hearing was fair and a supplemental report would have served no purpose because the court was required to impose its previously imposed sentence. Defendant also argued that he did not waive his right to a probation revocation hearing; this argument makes no sense because defendant had just such a hearing.

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

——————————————————————————————

*LUI, P.J., CHAVEZ, J., HOFFSTADT, J.

Filed 5/2/19 Kuwata v. Camarillo Community Care, Inc. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

LINDA KUWATA et al.,

Plaintiffs and Appellants,

v.

CAMARILLO COMMUNITY CARE, INC. et al.,

Defendants and Respondents.

B290539

(Los Angeles County

Super. Ct. No. BC595304)

APPEAL from a judgment of the Superior Court of Los Angeles County. Elizabeth R. Feffer, Judge. Affirmed.

Browne George Ross, Peter W. Ross and Ira Bibbero for Plaintiffs and Appellants.

Murchison & Cumming and Edmund G. Farrell for Defendants and Respondents.

* * * * * *

An elderly woman sued the skilled nursing facility where she stayed for several months for elder abuse, but a jury rejected her claim on the ground that any lapse in care by the facility was not a substantial factor in causing her harm. On appeal, she argues that the trial court erred in not allowing her to recall one of her expert witnesses in rebuttal. We conclude there was no error, and affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

Linda Kuwata (Kuwata) was a patient at the Camarillo Healthcare Center (Camarillo), a 114-bed skilled nursing facility, from December 30, 2014 through April 2, 2015.

A. Kuwata’s medical condition upon arrival

Kuwata was 79 years old at the time of her admission to Camarillo. Immediately prior, she was a patient at Kindred Memorial Hospital.

At the time she was admitted to Camarillo, Kuwata was already suffering from several medical conditions. She had previously suffered two strokes (one in 1997 and another around 2013), rendering the left side of her body “paralyzed” into a rigid position and otherwise impairing her coordination and movement. She was just recovering from brain surgery she had undergone to relieve pressure from a subdural hematoma she suffered from a fall in October 2014. Her arm was broken and in a splint; what is more, the broken bone had become infected. She also had recurring urinary tract infections. Kuwata was overweight, suffered from diabetes, hypertension and deep vein thromboses, and had peripheral vascular disease that affected blood flow to her extremities. The flesh of her left foot was dead due to dry gangrene. She was malnourished and dehydrated.

Kuwata also arrived at Camarillo with four skin ulcers. Specifically, she had (1) a “stage two” ulcer on her tailbone (which, medically, is referred to as the “sacral” or “coccyx”), (2) a stage two ulcer on her right buttocks, (3) a stage one ulcer on her heel, and (4) a stage two ulcer on her elbow. The “stage” refers to the depth of the ulcer: A stage one ulcer is on the surface of the skin; a stage two ulcer is open down to the “dermal area” of the skin; a stage three ulcer is open down to the “fat and connective tissue” below the skin; and a stage four ulcer (the deepest) is open to the “muscle, bone, major blood vessels, [or] other organs.” An “unstageable” ulcer is one whose depth cannot be determined because it is covered by a scab or flap of loose skin.

B. Kuwata’s temporary stays in other facilities

Kuwata’s stay at Camarillo had two interruptions. Between January 3 and January 6, 2015, Kuwata stayed at Community Memorial Hospital. And between January 15 and January 21, 2015, Kuwata stayed at St. John’s Pleasant Valley Hospital (St. John’s). Kuwata was transferred to St. John’s due to her high blood sugar and a fever, and while at St. John’s, was noted as having “severe sepsis” and a urinary tract infection.

C. Kuwata’s condition while at Camarillo

To combat Kuwata’s infections, Camarillo doctors and staff administered a course of antibiotics.

To combat her malnutrition, Camarillo doctors and staff continued to feed her through a previously implanted feeding tube and supplemented those feedings with pureed foods she could ingest orally. Kuwata ended up gaining weight while at Camarillo.

To combat the skin ulcers, Camarillo doctors and staff (1) cleaned and dressed the wounds, (2) installed a “pressure redistributing mattress” and (3) adopted a plan to reposition Kuwata as much as feasible to minimize the pressure on those wounds from the weight of her body. Regarding the cleaning and dressing of the wounds, Camarillo staff provided evolving treatment of the ulcer on Kuwata’s tailbone—at first, they cleaned it and then treated it with “barrier cream” and dry gauze, then they prescribed “Santyl ointment” (rather than barrier cream) to dissolve and remove the dead tissue, and finally they used Dakin’s moist gauze packing to clean the wound and keep down the bacteria. As a result of this regimen, the ulcers on Kuwata’s buttocks, heel and elbow healed. However, the ulcer on her tailbone progressed to a stage three by January 29, 2015 and, while diagnosed by Camarillo as “unstageable” by March 22, 2015, the ulcer became so deep that Kuwata’s adult daughter believed she could “stick [her] fist inside” the wound once the skin covering the ulcer was probed (which would clearly qualify the wound as stage four). Although a swab of the wound’s surface on April 2, 2015 showed some fecal bacteria near the surface of the tailbone ulcer and an MRI showed what could have been pus inside of the wound, doctors from another facility who examined the wound determined that it did not look infected to the naked eye, had no pus, and was “nontoxic.”

D. Kuwata’s care after release from Camarillo

After brief stays at other health care facilities in the spring of 2015, Kuwata was ultimately released to the care of her adult son. He continued to clean and dress the tailbone ulcer using a product called “Dermawound” that he located after doing a Google search on the Internet. Dermawound’s active ingredient is a local antiseptic. The ulcer closed up considerably, although not completely. While under her son’s care, Kuwata developed other pressure ulcers elsewhere on her body.

II. Procedural Background

A. Complaint

In the operative, First Amended Complaint as amended by two erratas, Kuwata sued the corporate entity that operates Camarillo as well as four related entities (collectively, defendants) for elder abuse (Welf. & Inst. Code, §§ 15610.07, 15610.57, subd. (b)), and Kuwata’s adult son and daughter sued defendants for intentional and negligent infliction of emotional distress. They sought at least $1 million in compensatory damages as well as punitive damages.

B. Trial

The trial was largely a battle of the experts.

1. Expert testimony, generally

Kuwata, her adult son and her adult daughter (collectively, plaintiffs) called two expert witnesses—Dr. Loren Lipson (Dr. Lipson) and nurse Charlotte Sheppard (Sheppard). Each expert opined that Camarillo’s care of Kuwata fell below the applicable standard of care because Camarillo (1) did not provide her proper nourishment, and (2) allowed her tailbone ulcer to worsen by (a) not repositioning her body every two hours to avoid excess pressure on the wound, (b) not using devices (such as special mattresses and wheelchair seats) to reduce the pressure on the wound, and (c) not properly cleaning the wound. Both experts’ opinions on the quality of Camarillo’s care relied, in whole or in part, on the “outcome”—that is, on the fact that Kuwata’s wound “deteriorated dramatically” while she was in Camarillo’s care.

Defendants called four experts: (1) Kuwata’s treating physician at Camarillo, Dr. Peter Allan (Dr. Allan), and (2) three expert witnesses—Dr. Robert Wang (Dr. Wang), Dr. William Klein and nurse Mary Ransbury (Ransbury). Both Dr. Wang and Ransbury opined that Camarillo’s care of Kuwata was appropriate. Dr. Wang and Ransbury opined that Camarillo provided Kuwata with proper nourishment. And all four defense experts explained that the staged progression of the tailbone ulcer was not due to any lapse in care by Camarillo because (1) the progression of the ulcer was due in large part to Kuwata’s myriad of health conditions that made it very difficult for the natural healing process to work, (2) repositioning Kuwata’s body every two hours was not medically advisable and was not feasible with a patient, like Kuwata, who was suffering from rigid paralysis of half of her limbs, wearing an arm splint, and hooked to a feeding tube that required elevation of her head, and (3) the wound was properly cleaned because, upon release from Camarillo, the wound was not infected.

2. The rebuttal kerfuffle

During his testimony, Dr. Wang offered one further reason why the progression of Kuwata’s tailbone ulcer from stage two to stage four was not due to any lapse in care by Camarillo—namely, that her ulcer wound was, in fact, two ulcers: The first ulcer was the stage two pressure-caused ulcer she had when she arrived at Camarillo, and the second was a “deep tissue injury” that developed during her brief stay at St. John’s in January 2015. In Dr. Wang’s opinion, the deep tissue injury formed at Kuwata’s tailbone and, as such injuries do, it slowly “expanded out to the surface” where it surfaced as a large hole. Thus, what plaintiffs’ experts characterized as a surface ulcer that had grown deeper due to pressure was, in Dr. Wang’s opinion, a deep tissue ulcer that was healing by rising up to the surface. For support of his opinion that Kuwata was suffering from a simultaneous deep tissue injury, Dr. Wang relied upon (1) a notation in a Camarillo record on January 14, 2015 referring to a “suspected deep tissue injury,” (2) a notation in a St. John’s record on January 16, 2015 referring to a “deep tissue injury,” (3) the absence of any infection deep in the wound, as noted in the April 2015 examination, and (4) the post-release healing of the wound through the application of only a local anesthetic, which would have been medically possible only if the injury was already present at the time Kuwata received her antibiotics treatment (which predated the time when the ulcer was stage four).

Plaintiffs did not object to Dr. Wang’s opinion on this point. Instead, they crossed Dr. Wang extensively regarding (1) the absence of any other notation, during the months Kuwata was at Camarillo, regarding a “deep tissue injury,” and (2) the presence of fecal bacteria on the swab of Kuwata’s wound during the April 2015 examination.

Plaintiffs also sought to recall Dr. Lipson as a rebuttal witness. When plaintiffs started by asking Dr. Lipson what a deep tissue injury was, defendants objected that his testimony was “improper rebuttal.” Plaintiffs noted that Dr. Wang had not mentioned the term “deep tissue injury” during his pretrial deposition, but they did not move to strike Dr. Wang’s trial testimony. Defendants responded that Dr. Wang had, during his deposition, insisted that describing Kuwata’s tailbone ulcer as a “pressure ulcer” did not “describe[] the etiology [that is, the cause]” of the wound because the “appearance” of an ulcer can be “the same[] whether it’s caused by excess pressure or other types of insults.” What is more, Dr. Wang had assured plaintiffs’ counsel [during the deposition] that his deposition testimony had covered the “general areas” of his expected testimony, but that “there may be details that you’ve asked me about that we haven’t covered.”

The trial court sustained defendants’ objection to Dr. Lipson’s rebuttal testimony on two grounds. First, the court ruled that recalling Dr. Lipson was “improper impeachment” because Dr. Wang had just been “asked to comment on St. John’s records,” which had been “made available to both sides” and on which there had been “ample cross-examination.” Second, the court concluded that Dr. Lipson’s rebuttal was not “relevant for [Evidence Code] section 352” because “[t]his area has been fully exhausted.”

C. Verdicts

The jury returned verdicts for defendants. With regard to the elder abuse claim, the jury found that (1) Camarillo had been responsible for Kuwata; (2) Camarillo had “fail[ed] to use the degree of care that a reasonable person in the same situation would have used in providing for . . . Kuwata’s basic needs,” and the special verdict form enumerated five different areas, including “[p]reventing malnutrition or dehydration” and “[p]reventing avoidable progression of bed sores”; and (3) Kuwata “was harmed.” However, the jury also found that Camarillo’s “conduct was [not] a substantial factor in causing . . . Kuwata’s harm.”

D. Post-Verdict and Appeal

Plaintiffs moved for a new trial on the ground that the verdicts were against the weight of the evidence. The trial court denied the motion.

Plaintiffs filed this timely appeal.

DISCUSSION

In their briefs, plaintiffs argued that the trial court erred in not allowing Dr. Lipson to testify on rebuttal—and that they are entitled to reversal on Kuwata’s elder abuse claim and the adult children’s emotional distress claims—because (1) Dr. Lipson’s rebuttal testimony qualifies as impeachment evidence, (2) the probative value of Dr. Lipson’s rebuttal testimony is not substantially outweighed by countervailing concerns under section 352, and (3) Dr. Wang surprised plaintiffs with testimony beyond the scope of his deposition testimony. For the first time at oral argument, plaintiffs argued that (4) Dr. Lipson’s testimony constituted proper rebuttal testimony even if it was not impeachment evidence because Dr. Lipson had been previously disclosed as a witness and the rule limiting rebuttal testimony to impeachment evidence only applies to undisclosed witnesses.

Many of these claims are not properly before us. Plaintiffs did not argue that Dr. Lipson’s excluded rebuttal testimony had any effect on the adult children’s emotional distress claims until their reply brief; their failure to raise the issue in their opening brief constitutes a waiver of that issue. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) Plaintiffs did not object to Dr. Wang’s testimony at trial regarding the topic of a deep tissue injury and did not subsequently move to strike that testimony or raise the issue in their new trial motion; they cannot attempt to do so now under the guise of an argument regarding prejudicial surprise. (§ 353; People v. Frank (1990) 51 Cal.3d 718, 732-733.) And plaintiffs did not argue in their briefs that Dr. Lipson’s testimony was admissible as the proper rebuttal testimony of a disclosed witness; they may not do so for the first time at oral argument. (Kinney v. Vaccari (1980) 27 Cal.3d 348, 356, fn. 6.)

The only argument we will address is plaintiff’s argument that the trial court erred in excluding Dr. Lipson’s testimony under section 352. We decline to exercise our discretion to overlook plaintiffs’ forfeiture of their argument challenging Dr. Wang’s testimony which was never presented to the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [discretion to excuse forfeiture “should be exercised rarely and only in cases presenting an important legal issue”].) And we have no occasion to reach either of plaintiffs’ arguments asserting that Dr. Lipson’s proffered testimony was proper rebuttal testimony (either as proper impeachment evidence or as proper rebuttal testimony of a previously disclosed witness) because, as we conclude, Dr. Lipson’s testimony was properly excluded under section 352 and a single viable basis for exclusion is sufficient to affirm an exclusionary ruling (e.g., Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 565).

I. Section 352

Section 352 grants trial courts “discretion” to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) We review a trial court’s exclusion of evidence under section 352 for an abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 743, 745.)

The trial court did not abuse its discretion in excluding Dr. Lipson’s proffered rebuttal testimony under section 352. That testimony looked to have minimal probative value. Plaintiffs had already extensively cross-examined Dr. Wang, including eliciting that all of the other medical records referred to Kuwata’s injury as a “pressure ulcer” and not a “deep tissue injury.” Plaintiffs’ other expert witness, Sheppard, had also already opined that Kuwata’s injury was caused by pressure, and thus not by some other mechanism: “Pressure sore[s] form[] from prolonged pressure,” she opined, “I mean, it’s pretty fundamental in the name . . . it’s called a pressure injury.” Dr. Lipson’s anticipated rebuttal testimony (which was proffered for the first time in the opening brief on appeal) that, in his opinion, Kuwata’s injury was caused by pressure and that Camarillo’s care was deficient even if Kuwata’s injury had been a deep tissue injury, would have been largely duplicative of evidence already before the jury. On the other side of the ledger, calling Dr. Lipson to state opinions already before the jury would “necessitate undue consumption of time.”.

Plaintiffs offer two further arguments in response. First, they assert that there would have been no “[u]ndue prejudice” because Dr. Lipson’s testimony would not have elicited any emotional response. This assertion rests on the correct definition of “undue prejudice” (People v. Valdez (2012) 55 Cal.4th 82, 133 [“prejudice” for this purpose means “emotional bias”]), but overlooks that undue consumption of time is an independent and sufficient basis for excluding Dr. Lipson’s rebuttal testimony under section 352. Second, plaintiffs contend that Dr. Lipson’s rebuttal testimony would not have taken too long to present. This overlooks that the substance of his proffered testimony, as noted above, was cumulative of other evidence. (People v. Mincey (1992) 2 Cal.4th 408, 439 [“Cumulative evidence may be excluded” under section 352].)

II. Prejudice

Even if we assume that the trial court erred in excluding Dr. Lipson’s rebuttal testimony, plaintiffs have not carried their burden of proving that they were prejudiced by this exclusion. An erroneous evidentiary ruling warrants reversal only when it results in a “miscarriage of justice.” (Cal. Const., art. VI, § 13; Civ. Proc. Code, § 475.) A miscarriage of justice exists only when “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)

It is not reasonably probable that the exclusion of Dr. Lipson’s proffered rebuttal testimony would have led to a different outcome for two reasons. First, and for the reasons discussed above with regard to its probative value, that testimony would have added little to the evidentiary mix that was already before the jury due to the cross-examination of Dr. Wang and the testimony of plaintiffs’ other expert. Second, plaintiffs told the trial court four different times that they would not need to call Dr. Lipson for rebuttal and that they had “nothing to be concerned about” as long as defendants agreed not to argue in closing that Kuwata’s injury was a deep tissue injury. Although defendants refused to so agree at the time, defendants’ closing argument ultimately contained no reference at all to Kuwata’s injury as being a deep tissue injury. Thus, under plaintiffs’ own view of the case, the exclusion of Dr. Lipson’s rebuttal testimony was of no moment.

DISPOSITION

The judgment is affirmed. Defendants are entitled to their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P.J.

ASHMANN-GERST

_________________________, J.

CHAVEZ

Filed 5/3/19 Andrichuk v. Bank of America, N.A. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

—-

PETR ANDRICHUK et al.,

Plaintiffs and Appellants,

v.

BANK OF AMERICA, N.A., et al.,

Defendants and Respondents.

C086671

(Super. Ct. No. SCV0039327)

In this postforeclosure action, plaintiffs Petr and Maria Andrichuk appeal from the judgment of dismissal entered after the trial court sustained without leave to amend the demurrer to their latest pleading. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

We recite only the pertinent facts and procedural history of this case.

Factual Background

In May 2005, plaintiffs (husband and wife) purchased a residential property located at 1757 Park Oak Drive, Roseville (the property). They executed an adjustable rate promissory note (Note), secured by a deed of trust (DOT) on the property. The Note indicates they borrowed $717,200 from Countrywide Home Loans, Inc. (Countrywide). The DOT identified them as the borrowers, Countrywide as the lender, CTC Real Estate Services as the trustee, and Mortgage Electronic Registration Systems, Inc. (MERS), as the beneficiary.

In August 2011, MERS assigned the beneficial interest under the Note and the DOT to BAC Home Loans Servicing, LP, formerly known as Countrywide Home Loan Servicing, LP (BAC). In September 2011, MERS substituted Recontrust Company, N.A. (Recontrust), as the trustee. On that same day, MERS assigned the beneficial interest under the Note and the DOT to Bank of America, N.A. (Bank of America), as successor by merger with BAC.

In February 2014, Bank of America substituted Clear Recon Corporation (CRC) as the trustee. Later that same day, CRC recorded a notice of default, which indicated that plaintiffs were in arrears on their loan in the amount of $218,142.76.

In May 2014, MERS, again, assigned the DOT to Bank of America. The assignment stated that it was a “[r]e-recording” of the August 2011 assignment of the DOT to correct borrower, original lender, assignee, and assignor. According to defendants, “[t]his corrective assignment reflected the assignment to Bank of America . . . which was the successor by [July 1, 2011 de jure] merger [with] BAC . . . .”

In April 2016, CRC recorded a notice of trustee’s sale. In May 2016, Bank of America Home Loans notified plaintiffs that they were in arrears on their loan in the amount of $324,192.45.

In late February 2017, plaintiffs filed a voluntary Chapter 11 bankruptcy petition. The following day, CRC sold the property at a foreclosure sale. Thereafter, a trustee’s deed upon sale was recorded.

Procedural History

In April 2017, plaintiffs filed this action against CRC, Bank of America, MERS, and Recontrust. The operative complaint is the verified first amended complaint (FAC), which was filed in September 2017. It alleges four causes of action: wrongful foreclosure, unfair or deceptive business practices in violation of Business and Professions Code section 17200 et seq. (commonly know as the unfair competition law (UCL)), fraud by deceit, and violation of Civil Code section 2934a.

In October 2017, Bank of America, MERS, and Recontrust (collectively, defendants) demurred to the FAC. Plaintiffs filed a written opposition. After hearing oral argument, the trial court sustained the demurrer without leave to amend.

Following the entry of the judgment of dismissal, plaintiffs filed a timely notice of appeal.

DISCUSSION

1.0 Appellate Record

Preliminarily, we note that the appellate record does not include a reporter’s transcript of the hearing on defendants’ demurrer to the FAC. Nor does it contain the trial court’s written order explaining its reasons for sustaining the demurrer without leave to amend. Although we do not countenance plaintiffs’ failure to provide a complete record of the relevant trial court proceedings, we conclude that affirmance on the basis of an inadequate record is not warranted. As we note below, we review an order sustaining a demurrer under a de novo standard. (Phillips v. Bank of America, N.A. (2015) 236 Cal.App.4th 217, 224.) In that review, “we are not required to accept the trial court’s legal reasons or conclusions of law; we review its ruling, not its reasoning.” (Qualcomm, Inc. v. Certain Underwriters at Lloyd’s, London (2008) 161 Cal.App.4th 184, 203-204 (Qualcomm); Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517 [in an appeal from an order sustaining a demurrer, the appellate court “is not bound by the trial court’s construction of the complaint, but must make its own independent interpretation”].)

Because we are not bound by the trial court’s ruling on the legal sufficiency of the FAC, we find that the appellate record is adequate to consider plaintiffs’ claims of error. The record includes the FAC and attached exhibits, and the parties’ trial court briefs regarding defendants’ demurrer and request for judicial notice. These documents are sufficient for us to ascertain the arguments raised below and to determine whether the trial court erred, especially given that in reviewing a ruling on a demurrer our analysis is limited to the operative complaint’s four corners, attached exhibits, and judicially noticeable matters. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400 (Hoffman).) Defendants, moreover, do not argue that plaintiffs have made an argument on appeal that was not asserted below.

2.0 Standard of Review

We review an order sustaining a demurrer without leave to amend de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1469.) “[W]e accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law.” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 (Yvanova).) We may also consider documents attached to the complaint and matters subject to judicial notice. (Hoffman, supra, 179 Cal.App.4th at p. 400.) To the extent the factual allegations in the complaint conflict with the complaint’s exhibits, we rely on the contents of the exhibits. (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.)

The plaintiff bears “the burden of demonstrating that the demurrer was sustained erroneously.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) “If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Such a showing can be made for the first time on appeal. (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)

3.0 The Trial Court Properly Sustained the Demurrer

3.1 Wrongful Foreclosure

Plaintiffs’ wrongful foreclosure cause of action is predicated on the theory that the August 2011 assignment of the DOT, the September 2011 substitution of trustee, and the September 2011 assignment of the DOT are void. In support of this claim, plaintiffs allege that the August 2011 assignment of the DOT did not transfer the Note. Plaintiffs further allege that the August and September 2011 assignments of the DOT and the September 2011 substitution of trustee contain forged or robo-signed signatures of individuals who did not have the authority to execute the documents. We conclude that plaintiffs have failed to show error.

Plaintiffs’ allegation regarding the transfer of the Note is contradicted by the language of the August 2011 assignment of the DOT, which states that MERS assigned “all beneficial interest under [the DOT] . . . together with the note(s) and obligations therein described . . . .” As for plaintiffs’ remaining allegations, the FAC alleges, at most, voidable, not void, transactions, which do not support a wrongful foreclosure action.

A void assignment is one that has no force or effect and which could not be ratified or validated by the parties to the assignment, even if they wished to do so; a voidable assignment is one that is valid unless an action is taken to void it. (Yvanova, supra, 62 Cal.4th at p. 936.) A borrower does not have standing to challenge the foreclosure if the assignment was merely voidable. (Id. at pp. 936, 942-943.) “When an assignment is merely voidable, the power to ratify or avoid the transaction lies solely with the parties to the assignment; the transaction is not void unless and until one of the parties takes steps to make it so. A borrower who challenges a foreclosure on the ground that an assignment to the foreclosing party bore defects rendering it voidable could thus be said to assert an interest belonging solely to the parties to the assignment rather than to herself.” (Id. at p. 936.)

Although robo-signing allegations have been made in many cases, plaintiffs fail to cite any authority in which a court set aside a trustee’s sale based on a robo-signed document. “ ‘[T]o the extent that an assignment was in fact robo-signed, it would be voidable, not void, at the injured party’s option.’ [Citation.] The bank, not the borrower would be the injured party.” (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 819 [discussing other cases reaching the same result]; see Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 46.) The same is true with respect to plaintiffs’ allegations of forgery and lack of authority to execute documents. (See Kalnoki, at p. 46 [forged documents “would be voidable, not void, at the injured party’s option”].) Even if true, plaintiffs’ allegations have no bearing on the validity of the foreclosure process here. This is because the allegations in the FAC and the exhibits attached thereto show that the accuracy of the salient facts, including that plaintiffs were in default on their loan and the amount owed, are not reasonably in dispute. (See ibid.) Accordingly, the trial court properly sustained defendants’ demurrer to plaintiffs’ first cause of action for wrongful foreclosure.

We find no merit in plaintiffs’ contention that the FAC asserts a wrongful foreclosure cause of action predicated on the theory that the Note was never transferred to Bank of America. Without elaboration or citation to authority, plaintiffs argue that “the Note was never transferred to Bank of America . . . and that the allegation asserted in said Assignment of [DOT] that Plaintiffs’ Note was conveyed to Bank of America . . . is false and in reasonable dispute. Thus, the Assignment of [DOT] is fraudulent and void and the Note was never transferred to Bank of America at any time.” Similarly, plaintiffs argue that “the absence of any stamped endorsements and/or Allonges attached to the Note further support [their] position that no such transfer of [the] Note has ever been conveyed to the parties listed on the Assignments of [DOT], or to any other party.” Plaintiffs have failed to meet their burden to demonstrate that the trial court erred by providing legal argument supported by citation to legal authority. (Rojas v. Platinum Auto Group, Inc. (2013) 212 Cal.App.4th 997, 1000, fn. 3.) We are not required to supply arguments or examine undeveloped claims. (Allen v. City of Sacramento, supra, 234 Cal.App.4th at p. 52.) “When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration.” (Ibid.)

3.2 Remaining Causes of Action

Plaintiffs have also failed to show error with respect to their remaining causes of action. Plaintiffs’ opening brief offers no legal argument under separate headings addressing their causes of action for violation of the UCL (second cause of action), fraud by deceit (third cause of action), and violation of Civil Code section 2934a (fourth cause of action).

“The fact that we examine the complaint de novo does not mean that plaintiffs need only tender the complaint and hope we can discern a cause of action. It is plaintiffs’ burden to show . . . that the demurrer was sustained erroneously . . . .” (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655.) It is a fundamental rule of appellate practice that “the trial court’s judgment is presumed to be correct, and the appellant has the burden to prove otherwise by presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited.” (Ibid.) “It is the appellant’s responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on the appellant’s behalf.” (Id. at p. 656.) “[T]he appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made; otherwise, the point will be forfeited.” (Ibid.)

Plaintiffs’ opening brief does not follow these rules or demonstrate error with respect to the trial court’s ruling on their second, third, and fourth causes action. Accordingly, the demurrer was properly sustained as to those claims.

3.3 Other Contentions

In their opening brief, plaintiffs repeatedly claim that the trial court misstated the allegations in the FAC in its written order sustaining defendants’ demurrer. However, as previously indicated, the record does not contain the trial court’s written order. Consequently, plaintiffs’ claims of error are forfeited and, in any event, are not germane to our review. As we explained above, our analysis in reviewing the trial court’s ruling is limited to the operative complaint’s four corners, attached exhibits, and judicially noticeable matters. (Hoffman, supra, 179 Cal.App.4th at p. 400.) Thus, the trial court’s characterization of the allegations in the FAC is irrelevant to our determination of whether a viable cause of action has been stated. (See Qualcomm, supra, 161 Cal.App.4th at pp. 203-204 [we review the trial court’s ruling, not its reasoning]; Rodas v. Spiegel, supra, 87 Cal.App.4th at p. 517 [in reviewing an order sustaining a demurrer, the appellate court “is not bound by the trial court’s construction of the complaint, but must make its own independent interpretation”].)

Plaintiffs also insist that we must accept as true their allegations in the FAC. To the extent plaintiffs contend that we must accept as true their allegations that certain transactions were void and not merely voidable, we disagree. “[A]n allegation that an instrument is ‘illegal,’ ‘unauthorized’ or ‘void’ is but a conclusion of law . . . .” (Burlingame v. Traeger (1929) 101 Cal.App. 365, 369; see Faulkner v. California Toll Bridge Authority (1953) 40 Cal.2d 317, 329 [allegation that the acts of a commission or board were “ ‘arbitrary, capricious, fraudulent, wrongful and unlawful’ ” are mere conclusions of law].) We do not assume the truth of conclusions of law found in the FAC. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

Finally, we reject plaintiffs’ suggestion that reversal is required because the trial court erred in taking judicial notice of hearsay statements contained in recorded documents. When a court is required to rule on a demurrer, the discretion provided by Evidence Code section 452 allows the court to take judicial notice of a fact or proposition within a recorded document “ ‘that cannot reasonably be controverted, even if it negates an express allegation of the pleading.’ ” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264, disapproved on another ground in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.) A court may take judicial notice of numerous facts that can be deduced from recorded documents, including, among other things, their existence, recordation, and date of recordation, without overstepping the court’s discretion under Evidence Code section 452. (Fontenot, at pp. 264-265.) “[T]he propriety of the court’s action depends upon the nature of the facts of which the court takes notice from the document.” (Id. at p. 265.) We review the court’s decision to take judicial notice for abuse of discretion. (Id. at p. 264.)

Plaintiffs have not shown that the trial court relied on any statements made in the recorded documents they vaguely reference in their opening brief or that any such reliance was an abuse of discretion. The record does not include the trial court’s ruling on defendants’ request for judicial notice, the court’s written order sustaining the demurrer, or the transcript from the hearing on the demurrer.

4.0 The Trial Court Properly Denied Leave to Amend

Plaintiffs have failed to show that there is a reasonable probability they could cure the defects in the FAC given further opportunity to do so. There is nothing in the record or in plaintiffs’ appellate briefs showing they could amend the FAC to state a viable cause of action. In their opposition to defendants’ demurrer, plaintiffs, without elaboration, requested leave to amend if the trial court sustained the demurrer in whole or part. In their appellate briefing, plaintiffs make no effort to show how they can amend the FAC to state a viable cause of action. Accordingly, the trial court did not abuse its discretion in sustaining defendants’ demurrer without leave to amend.

DISPOSITION

The judgment is affirmed. Defendants shall recover costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

s/BUTZ , J.

We concur:

s/RAYE , P. J.

s/HOCH , J.

Filed 5/3/19 P. v. Potts CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY POTTS,

Defendant and Appellant.

B290757

(Los Angeles County

Super. Ct. No. YA094029)

APPEAL from a judgment of the Superior Court of Los Angeles County. Scott T. Millington, Judge. Affirmed in part and remanded with directions.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

In a second amended information filed by the Los Angeles County District Attorney’s Office, defendant and appellant Timothy Potts (defendant) was charged with one count of inflicting corporal injury upon a person with whom he had a “dating relationship” following a prior domestic violence conviction (Pen. Code, § 273.5, subd. (f)(2); count 1), one count of criminal threats (§ 422, subd. (a); count 2), one count of dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1); count 3), and six counts of attempting to dissuade a witness (§ 136.1, subd. (a)(2); counts 4–9). It was further alleged that defendant had two prior “strike” convictions within the meaning of the “Three Strikes” law (§§ 667, subd. (d), 1170.12, subd. (b)), as well as two serious felony convictions (§ 667, subd. (a)(1)) and five prior prison terms (§ 667.5, subd. (b)).

A jury convicted defendant of counts 1 and 4 through 9 and acquitted him of counts 2 and 3. In a bifurcated proceeding, the trial court found the alleged priors to be true.

The trial court partially granted defendant’s Romero motion, striking one prior conviction as to counts 5 through 9 but denying the motion as to count 4. Defendant was sentenced to a total term of 43 years eight months to life in prison, comprised of 35 years to life on count 4, including two five-year serious felony enhancements pursuant to section 667, subdivision (a)(1); two years on count 1; and 16 months each on counts 5 through 9.

In this timely appeal, defendant argues that the trial court erred by permitting the introduction of a witness’s prior testimony where the prosecution failed to demonstrate due diligence in securing that witness’s presence at trial; there was insufficient evidence to support his conviction on count 1 and the true finding on one prior conviction; and, pursuant to Senate Bill No. 1393 (SB 1393), the matter must be remanded for the trial court to exercise its new discretion to strike one or both of the previously mandatory five-year serious felony enhancements.

We remand for resentencing so that the trial court may exercise its new discretion to consider striking one or both serious felony enhancements. We affirm the judgment in all other respects.

BACKGROUND

I. The People’s Evidence

A. The February 13, 2016 incident

1. Ford’s testimony

M. Ford (Ford) testified that defendant was her ex-boyfriend. They dated for “[a]bout a few months[,]” starting in December 2015, but did not live or have children together.

On February 13, 2016, at approximately 8:25 p.m., an altercation erupted between defendant and Ford at Ford’s home. Although defendant “wasn’t allowed at [Ford’s] house” because he had previously stolen money from her, “he . . . barg[ed] through to get in the door.” Ford ran to her bedroom from the living room, followed by defendant. Ford tried to call 911, but defendant “smacked” or “knocked” the phone out of her hand.

Defendant began to attack Ford. He pushed Ford onto her bed and restrained her by pinning her down with his hands. Defendant punched Ford in the face multiple times, causing injuries to her lip and forehead. Ford “[l]ike . . . just blacked out, and . . . grabbed [her] mace and maced [defendant].” Defendant told Ford, “‘Oh, bitch, I’m gonna kill you now.’”

Tierra Daniels (Daniels), the mother of Ford’s brother’s child, was present and called the police. Defendant left.

2. The 911 call

Audio of Daniels’s 911 call was played for the jury. On the call, Daniels described the incident as “domestic violence[,]” involving “[a] boyfriend.” She told the dispatcher, “I’m calling for a friend. They were fighting and you guys need to get here.”

3. Deputy Patino’s testimony

Deputy Sandra Patino of the Los Angeles County Sheriff’s Department responded to Ford’s home with her partner. Ford “seemed pretty scared, kind of shaking[,]” and Deputy Patino “could see bleeding on her lips from the lacerations.” Ford, however, refused medical attention. Ford did not tell Deputy Patino that defendant knocked the phone out of her hand or threatened to kill her, or that she had lost consciousness.

Deputy Patino took photographs of Ford, depicting how she appeared on the night of February 13, 2016, with swelling on the left side of her forehead, lacerations on her upper and lower lips, and blood stains on her shirt.

B. Attempts to dissuade Ford from testifying

1. Recorded phone calls

The prosecution played portions of recordings of eight phone calls from defendant while he was in jail in late April and early May 2016, prior to his first preliminary hearing originally scheduled for May 11, 2016. A field service manager for Global Tel Link explained how inmates at Los Angeles County jails make phone calls, and authenticated the audio files played as being associated with defendant.

i. The April 27, 2016 call

In a call made on April 27, 2016, defendant said to an unknown female, “I got a fucking, a warrant, I mean a felony for fucking domestic battery? . . . I’ve been doing my investigation on the bitch. I just talked to some homies from Inglewood Family. They know the bitch.” He continued, “I’m like you think the bitch going to come to court? They like no, I don’t think she’s going to come to court, but it’s still the bitch name is on black and white [unintelligible].”

Defendant described Ford, including her skin tone, name (“Manika . . . or Malika Ford”), nickname, and the number of children she had. Defendant provided what he believed was Ford’s address and stated, “You seen the spot. You’ll know when you pull, if you pull up, you’ll know, you’ll know exactly which one it is because you’ve seen me pull up over there before.”

ii. The April 28, 2016 call

During a call on April 28, 2016, defendant told an unknown female to “[c]ome see me and get my phone so you can get in contact with that bitch, man. Tell that bitch don’t come to court in 60 days after trial, . . . and I need to be out of here before Sunday, to be truthfully fucking honest with you. So I’m going to handle my counter with that shit.”

iii. The April 30, 2016 call

On April 30, 2016, defendant tried to have an unknown female initiate a three-way call to Ford’s phone number. Defendant stated, “I’m trying to get the bitch number so you can call the bitch on the three-way, so I can talk to the bitch, see if the bitch going to come to my fucking court.” He told the unknown female, “I can’t risk calling her and having you call her straight through. I can’t risk that shit because the fucking restraining order says I can’t, I can’t contact the bitch in no kind of way, no how, third party, three-way, none of that shit.”

iv. The May 1, 2016 calls

The jury heard three calls made on May 1, 2016. In one, defendant told the person on the other end of the line that “I’m trying to figure out a way—come up with a way, man, to get this bitch to not come to court, man. I need your help on this. I need to figure out, what the fuck can we do?” He stated that he could provide “the bitch address” and “the bitch phone number[,] . . . [b]ut I can’t really call the bitch. I just can’t afford for nobody to go around there and go hard on the bitch, because if they do, the bitch is going to come to court.”

In another call defendant stated, “I sic my baby momma on her. . . [S]o let them bitches kill each other or do what the fuck they’re going to do with each other. Or . . . use my son as bait, to talk . . . to talk the bitch into not coming to court, okay? My plan . . . is to get the fuck out of here, man.”

In another call, an unidentified person warned defendant, “I don’t think that’s a good idea for you to talk to old girl. Because if you tell her not to come to court, that’s coercion of a witness[.]” Defendant responded, “I understand all that. I’m not going to call and talk to her. I’m going to have somebody do it[.]” He further explained, “they don’t have no way of connecting me with the person who’s calling . . . [.] They don’t—she don’t know who my people is like that.”

v. The May 4, 2016 call

In a call made on May 4, 2016, defendant asked an unidentified person to call Ford’s phone number and initiate a three-way call. When no one answered the phone, defendant asked the person to try Ford’s number but at a different area code. Defendant said, “I ain’t supposed to be doing none of this. That’s why I’m not trying to talk.”

vi. The May 5, 2016 call

Finally, in a call made on May 5, 2016, defendant asked an unidentified person to check “my phone” for Ford’s phone number. Defendant stated, “That bitch ain’t answering that fucking phone, man. I guess the bitch know what time it is. That mean some fuck shit going on.”

2. Ford’s testimony

Recordings of the eight jail phone calls were played for Ford, and she testified that she recognized defendant’s voice on each. She received a few phone calls from defendant or his relatives encouraging her not to go to court, as well as text messages from defendant’s niece.

II. Defendant’s Evidence

A. Defendant’s testimony

Defendant testified that he met Ford in December 2015 on Facebook and saw her about seven or eight times between then and February 2016. Defendant denied that he had a romantic, dating, or sexual relationship with Ford, instead describing their relationship as “more or less social.” Defendant stated, “I’m guilty of indulging in social partaking in marijuana, and [Ford] was more or less somebody that, you know, I indulged in smoking marijuana with every now and then when I came to town. I was residing in Las Vegas at the time.”

Defendant went to Ford’s house on February 13, 2016, because Ford had called him several times that day “sound[ing] kind of distraught, upset” and telling defendant that she wanted to talk to him about something in person. Ford invited him inside. Defendant sat down and pulled out his marijuana paraphernalia.

Ford said that she needed money to pay her power bill, which defendant “kind of laughed . . . off” because she could not “be serious asking [him] for some money” given that they did not “have any kind of involvement with each other.” Ford “got upset” and explained that it was “a serious situation[.]” She accused defendant or “someone that [he] deal[t] with” of calling the Department of Children and Family Services to her home. Defendant and Ford “had a small bout with each other verbally in regards to [defendant] denying that.”

As defendant tried to leave, Ford pulled out a can of pepper spray or mace and began to spray it. Defendant then “grabbed her by her wrists trying to gain control . . . and stop her from spraying.” The spray got into defendant’s eyes, causing a burning sensation and impaired vision. “[S]till trying to maintain control over the pepper spray[,]” defendant “[f]orcefully . . . ha[d] her wrists[.]” Defendant stepped forward, Ford stepped back onto an object low to the ground, and they both went down, pushed by defendant’s momentum. Ford landed backwards, with defendant on top of her. Defendant “guess[ed] that that’s when the injuries that [Ford] claimed happened took place.” Defendant gained control of the pepper spray, got up, and left Ford’s home. Defendant denied threatening Ford’s life, punching her in the face, or knocking a phone out of her hand.

Defendant denied contacting Ford to try to get her to not come to court or instructing a third party to dissuade Ford. He admitted “making phone calls telling [third parties] that [he] wanted to see if [Ford] was go[ing to] come to court[,]” attempting a three-way call “wanting to see what [Ford’s] mind set was” about appearing, and providing Ford’s name and address to a third party for the same reason. Defendant acknowledged that the recorded phone calls indicated that he was “at least thinking about the fact that [he] didn’t want . . . Ford to come into court[,]” but that he did not “act on that thought at any point or in any way[.]”

B. The private investigator’s interview with Ford

Johnny Swanson (Swanson), defendant’s private investigator, testified that he interviewed Ford on June 27, 2016. Ford told Swanson that, when defendant “started putting his hands on” her and “pinned” her down, she sprayed him with mace, after which defendant scratched her, “busted [her] lip[,]” and threatened to kill her. Ford told Swanson that she was able to get away from defendant, run into the bathroom, lock the door, and call the police.

When asked by Swanson how long she dated defendant, Ford responded that they had dated for “only a few months.” Ford explained that they had met through Facebook: “[W]e had got acquainted and then when he came over, we was just, you know like cool or whatever and then we just, it wasn’t like an official date because of his history and what he do.”

C. Detective Shaw’s testimony

Defendant called Detective Diana Shaw, of the Los Angeles County Sheriff’s Department, as a witness. Detective Shaw interviewed Ford several days after the February 13, 2016 incident. Ford told Detective Shaw that defendant punched her four to five times, but that no one else was present during the incident. During this first interview, Ford did not say that defendant had threatened to kill her during the incident or knocked the phone out of her hand, preventing her from calling 911. Nor did Ford tell Detective Shaw that she and defendant “were in an intimate or sexual relationship[.]”

In a later interview during May 2016, Ford told Detective Shaw that her child had been present during the February 13, 2016 incident, as well as another person, and that defendant had threatened to kill her.

D. Deputy Patino’s testimony

Defendant recalled Deputy Patino to testify. When Deputy Patino interviewed Ford on the night of the incident, Ford stated that defendant “was her boyfriend, and they had been dating for three months[,]” but that they did not live or have children together. Ford told Deputy Patino that, in the lead up to the argument with defendant, Ford “confronted” defendant about stealing money.

DISCUSSION

I. The Trial Court Properly Admitted Ford’s Preliminary Hearing Testimony.

A. Relevant facts and proceedings

1. The prosecution’s efforts to locate Ford

Ford appeared in court on May 11, 2016—the date that defendant’s preliminary hearing was originally scheduled to take place. She did not appear on October 3, 2016, however, and the trial court issued a body attachment at the prosecution’s request. Ford came to the courthouse on October 24, 2016, and on November 17, 2016, appeared and testified at the preliminary hearing. The prosecutor maintained regular contact with Ford, speaking with her about the case status on December 6, 2016; February 2, 2017; and May 4, 2017. Ford did not appear on May 23, 2017, pursuant to a subpoena personally served on her earlier that month, and another body attachment issued.

The next scheduled court date was August 9, 2017, when the jury trial was set to begin. On August 7, 2017, the prosecutor called Ford and left a voice message. He also texted and e-mailed her. But Ford failed to appear on August 9, 2017, and the trial court issued another body attachment. Later that night, the prosecutor received an e-mail response from Ford providing a new telephone number, which he called, left a voice message for, and texted the following day. The prosecutor received a return text from the new number Ford had provided informing him that he had the wrong number. The prosecutor e-mailed Ford the next day, August 11, 2017, but did not receive a response.

On August 15, 2017, at approximately 9:50 a.m. and 2:00 p.m., a senior district attorney investigator attempted to serve Ford at the address where he had previously successfully served her with a subpoena in May 2017. No one responded when the investigator knocked at the door. A housing authority inspection notice with Ford’s name on it was on the screen door. He spoke with the building manager, who recognized Ford’s name and photograph and confirmed that she lived at that address.

The investigator returned to Ford’s apartment on August 16, 2017, at approximately 7:00 a.m. and 2:30 p.m. Both times, he knocked on the door but received no response. He left a business card in the screen door during his afternoon attempt.

He returned to the apartment again the next day, August 17, 2017, at approximately 7:15 a.m. and 3:00 p.m. Again, there was no response to his knocks on the door, and he saw the business card that he had left the day before lying on the front porch. He also checked with the Los Angeles County Sheriff’s Department regarding whether Ford was in custody and with the coroner’s office, with negative results from both inquiries.

He went to Ford’s apartment a final time at approximately 7:00 a.m. on August 18, 2017, but there was no response. He called Ford that morning and left a message.

2. Motion to introduce Ford’s prior testimony

On August 18, 2017, the People moved to admit Ford’s testimony from the November 17, 2016 preliminary hearing based on her unavailability to testify at defendant’s trial. The trial court held a hearing on the motion that day, during which the district attorney investigator testified under oath and the prosecutor made unsworn “representations as an officer of the court” regarding his communications with Ford.

As Ford was the “lone victim[,]” the trial court characterized Ford’s testimony as “[o]bviously . . . very important.” The court questioned why the investigator did not go to Ford’s home at night instead of repeatedly going “when a person might be working” and had concerns regarding whether the prosecution used “[a]ll reasonable means” to secure Ford’s attendance.

Notwithstanding these reservations, the trial court balanced relevant factors and concluded “that the prosecution ha[d] made reasonable efforts to secure [Ford’s] attendance” and that she remained unavailable. Accordingly, the court admitted Ford’s preliminary hearing testimony over defendant’s objection.

B. Relevant law and standard of review

A criminal defendant’s right to confront the witnesses against him is guaranteed under both the federal and state constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Herrera (2010) 49 Cal.4th 613, 620 (Herrera).) The confrontation right, however, “is not absolute. If a witness is unavailable at trial and has given testimony at a previous court proceeding against the same defendant at which the defendant had the opportunity to cross-examine the witness, the previous testimony may be admitted at trial. In a criminal case, the prosecution bears the burden of showing that the witness is unavailable and, additionally, that it made a ‘good-faith effort’ [citation] or, equivalently, exercised reasonable or due diligence to obtain the witness’s presence at trial. [Citations.]” (People v. Sánchez (2016) 63 Cal.4th 411, 440 (Sánchez).)

“[I]ncapable of a mechanical definition[,]” due diligence “connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citation.]” (People v. Linder (1971) 5 Cal.3d 342, 346–347.) Whether due diligence has been exercised is a case-specific inquiry. (See id. at p. 346.) “Relevant considerations include the timeliness of the search, the importance of the witness’s testimony, and whether leads were competently explored. [Citation.]” (Sánchez, supra, 63 Cal.4th at p. 440.)

We “defer[] to the trial court’s determination of the historical facts if supported by substantial evidence, but . . . review[] the trial court’s ultimate finding of due diligence independently, not deferentially. [Citations.]” (Sánchez, supra, 63 Cal.4th at p. 440.)

C. Analysis

Reviewing the prosecution’s efforts to secure Ford’s presence at trial, we conclude that the People exercised due diligence and that the trial court properly admitted Ford’s prior testimony.

Until August 7, 2017, the prosecutor believed that Ford was a cooperative witness. Despite defendant’s attempts to dissuade her from testifying, Ford appeared in court in May 2016 when defendant’s preliminary hearing was originally scheduled to take place. She appeared on October 24, 2016, as well as on November 17, 2016, when she testified at the preliminary hearing. Ford spoke to the prosecutor about the case on December 6, 2016; February 2, 2017; and May 4, 2017.

As trial approached, the prosecutor called, texted, and e-mailed Ford on August 7, 2017. He received a response to his e-mail two days later providing a new phone number for Ford, which he called and texted. Whether intentional or not, the new phone number was incorrect, and the prosecutor’s e-mail to Ford informing her of the wrong number did not receive a response. Once the investigator became involved in the search for Ford, he went to her apartment seven times over a four-day period and called her. He confirmed that Ford still lived at the address by speaking with the building manager and observing a notice addressed to Ford on the door. He made inquiries with the sheriff’s department and the coroner.

The issue before us is whether the prosecution “show[ed] that its efforts to locate and produce [Ford] for trial were reasonable under the circumstances presented. [Citations.]” (Herrera, supra, 49 Cal.4th at p. 623.) We conclude that the prosecution met its burden.

Defendant points to the investigator’s failure to search social media, make inquiries with other government agencies or nearby hospitals, or talk to Daniels or to Ford’s neighbors. “Additional measures can always be suggested. ‘But these suggestions do “not change our conclusion that the prosecution exercised reasonable diligence. ‘That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness.’”’ [Citation.]” (Sánchez, supra, 63 Cal.4th at p. 448.) Thus, once the threshold showing of reasonableness has been made, as was made here, the mere existence of additional efforts that could have been used does not disturb the due-diligence finding.

Defendant also argues that the trial court should not have considered the prosecutor’s unsworn statements regarding his efforts to contact Ford and that the prosecution should have continued to search for Ford after the court ruled that she was unavailable. We find these contentions meritless.

First, the trial court could properly exercise its discretion to consider the prosecutor’s representations—without requiring him to testify formally—to determine whether due diligence had been exercised. In People v. Smith (2003) 30 Cal.4th 581 (Smith), the Supreme Court concluded that “[t]he prosecution met its burden of showing due diligence” (id. at p. 611) in part based on the prosecutor’s “representation as an officer of the court” where the trial court did not “require[] him to testify formally” (id. at p. 608). Although such “information may have been legally incompetent” for other purposes, “it sufficed to show that the prosecution made reasonable efforts to locate” a missing witness. (Id. at p. 611.) We find no error here in considering the prosecutor’s representations for this purpose given that “attorneys are officers of the court, and ‘“when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.”’ [Citation.]” (Holloway v. Arkansas (1978) 435 U.S. 475, 486; see also People v. Laudermilk (1967) 67 Cal.2d 272, 286 [regarding “statements of a responsible officer of the court as tantamount to sworn testimony” where defense counsel was “describing and representing to the court his own personal experiences with and observations of his client”].)

Second, we reject defendant’s contention that the prosecution had a duty to continue searching for Ford even after the trial court ruled that she was unavailable. The cases cited by defendant are readily distinguishable and do not stand for such a proposition. For example, in Burns v. Clusen (7th Cir. 1986) 798 F.2d 931, the Seventh Circuit Court of Appeals held that it was error to find based “on a confused and ‘stale’ record” that a witness was unavailable because of a mental disability. (Id. at p. 943.) The court explained that, “[i]f a prosecutor secures an early ruling of unavailability, and there is a delay until the start of trial so as to make the earlier information ‘stale,’ the obligation remains upon the prosecutor to offer current information proving that the status of the witness’ illness has not changed.” (Ibid.) Here, the court ruled that Ford was unavailable because she could not be located on August 18, 2017, and her preliminary hearing testimony was read to the jury just five days later on August 23, 2017. We find no error.

Ford’s preliminary hearing testimony was properly admitted based on her unavailability.

II. Substantial Evidence Supports Defendant’s Corporal Injury Conviction.

Defendant contends his conviction for corporal injury under section 273.5 (count 1) must be reversed because there is insufficient evidence that he was in a dating relationship with Ford. We conclude otherwise.

“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Powell (2018) 5 Cal.5th 921, 944.)

Under section 273.5, subdivisions (a) and (b)(3), an offender is guilty of a felony if he or she “willfully inflicts corporal injury resulting in a traumatic condition upon” a person “with whom the offender has, or previously had, a[] . . . dating relationship[.]” A “dating relationship” is defined for this purpose as “frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations.” (§§ 243, subd. (f)(10), 273.5, subd. (b)(3).)

This “‘definition of a dating relationship . . . does not require “serious courtship,” an “increasingly exclusive interest,” “shared expectation of growth,” or that the relationship endures for a length of time. [Citation.] The statutory definition requires “frequent, intimate associations,” a definition that does not preclude a relatively new dating relationship. . . .’ [Citation.]” (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322–1323 (Upsher).) However, “a ‘“dating relationship” does not include “a casual relationship or an ordinary fraternization between [two] individuals in a business or social context” . . . .’ [Citation.]” (Id. at p. 1323.)

Substantial evidence supports the jury’s finding that Ford and defendant either had or were in a dating relationship within the meaning of the statute. Ford testified that defendant was her ex-boyfriend, who she had dated for a few months. On the night of the incident, Ford told Deputy Patino that defendant was her boyfriend and that they had been dating for three months. Ford also told defendant’s private investigator that she had dated defendant for a few months. On the 911 call, Daniels described “domestic violence[,]” involving “[a] boyfriend.” And, although defendant denied having a dating relationship with Ford, he testified that he saw her about seven or eight times between December 2015 and February 2016 when he would come to town from Las Vegas.

From this evidence a reasonable juror could find beyond a reasonable doubt that defendant was “not merely [in] a casual social relationship” (Upsher, supra, 155 Cal.App.4th at p. 1323) with Ford but rather shared “frequent, intimate associations” (§ 243, subd. (f)(10)) sufficient to constitute a dating relationship. We therefore affirm defendant’s conviction on count 1.

III. Substantial Evidence Supports the True Finding on Defendant’s Prior Conviction for Voluntary Manslaughter.

The trial court found true the allegation that defendant suffered a prior conviction in 1998 for voluntary manslaughter (§ 192, subd. (a)). Defendant argues that the true finding must be reversed because it was based on an unsigned, uncertified abstract of judgment. We disagree.

“[A] defendant’s statutory right to a . . . trial on prior conviction allegations (§ 1025) . . . include[s] various procedural guaranties: the prosecution must prove the prior conviction allegation beyond a reasonable doubt, the defendant enjoys the privilege against self-incrimination and the right to confront and cross-examine witnesses against him, and the rules of evidence apply. [Citation.]” (People v. Henley (1999) 72 Cal.App.4th 555, 564.) Under section 969b, the prosecution can meet its burden of proving a prior conviction by introducing certified copies of prison records. (People v. Brucker (1983) 148 Cal.App.3d 230, 241 (Brucker).) “[S]ection 969b is essentially ‘a hearsay exception’ that allows certified copies of the specified records ‘to be used for the truth of the matter asserted in those records,’ i.e., that a person served a prison term for a prior conviction. [Citation.]” (People v. Martinez (2000) 22 Cal.4th 106, 116 (Martinez).)

Here, the “evidence offered pursuant to section 969b, commonly referred to as a ‘969b packet’” (People v. Moreno (2011) 192 Cal.App.4th 692, 707), included a chronological log of defendant’s movement history within the Department of Corrections and Rehabilitation, abstracts of judgment, fingerprint cards, and a photograph of defendant. The cover page of the 969b packet was a signed letter from a correctional case records analyst “certify[ing] that the Director of the Department of Corrections[] is the official legal custodian of the records of prisoners committed to the California State Prisons” and had “authorized [the analyst] to certify . . . the criminal records of persons who have served sentences in California State Prisons.” The analyst further certified that the accompanying documents were “a true and correct copy of the original(s) in [her] custody . . . .” Among the documents in the 969b packet was an abstract of judgment for case number CR60589 out of Riverside County indicating that defendant was convicted of voluntary manslaughter on April 8, 1998, and received an eight-year sentence. Although bearing the stamp of the Riverside County Superior Court, the abstract of judgment was not signed by the clerk.

Defendant argues that the unsigned, uncertified abstract of judgment does not constitute proper, admissible evidence that he suffered the voluntary manslaughter conviction. He asserts that “[a]n official record of conviction certified in accordance with subdivision (a) of [Evidence Code] section 1530” (Evid. Code, § 452.5, subd. (b)(1)) is the exclusive means of proving a prior conviction. Not so. While, “under [Evidence Code] sections 1530 and 452.5, subdivision (b), a properly certified copy of an official court record is a self-authenticated document that is presumptively reliable, and standing alone may be sufficient to prove a prior felony conviction” (People v. Skiles (2011) 51 Cal.4th 1178, 1186), these statutes do not limit the means of proving a prior conviction to this method alone (see id. at pp. 1186–1187). Section 969b explicitly provides that certified prison records constitute prima facie evidence of a prior conviction. And, “provided it satisfies applicable rules of admissibility,” “evidence other than the record of conviction and certified prison records under section 969b is admissible” for this purpose as well. (Martinez, supra, 22 Cal.4th at p. 116.)

As defendant acknowledges, “[s]ection 969b does not require that each separate prison document be individually certified.” (Brucker, supra, 148 Cal.App.3d at p. 241.) Rather, a single certification applicable to all prison documents in a 969b packet is sufficient. (Id. at pp. 240–241.) Defendant argues, however, that such a rule does not apply “if a particular record in the packet is itself required to be certified such as an abstract of judgment[.]” Defendant’s reliance on People v. Matthews (1991) 229 Cal.App.3d 930 (Matthews) for this proposition is misplaced. Matthews considered the admissibility of uncertified computer printouts of “rap sheets” to prove a prior conviction. Not only did the computer-generated lists themselves “lack any certification,” but they were also “not included within materials otherwise certified.” (Id. at p. 938.) The Court of Appeal concluded that, without a proper foundation, the records were inadmissible under either the business records exception or official records exception to the hearsay rule. (Id. at p. 940 & fn. 6.) Matthews did not consider the admissibility of an abstract of judgment maintained as a prison record and included as part of a certified 969b packet—that is, “included within materials otherwise certified” (id. at p. 938).

The abstract of judgment at issue here was unsigned, but it bore the stamp of the superior court, as well as a stamp indicating that it was filed in the superior court. And, it was introduced as part of a properly certified 969b packet. The abstract—a “statutorily sanctioned, officially prepared clerical record of the conviction and sentence” that “may serve as the order committing the defendant to prison” (People v. Delgado (2008) 43 Cal.4th 1059, 1070)— was properly admitted and considered by the trial court to find true defendant’s prior voluntary manslaughter conviction. (See id. at pp. 1064, 1070–1071 [affirming true finding of prior conviction based on abstract of judgment included in a 969b packet].)

Nor do we discern a risk of injustice in this case. Defendant does not argue or point to anything in the record suggesting that the abstract of judgment was not, in fact, an accurate record of the fact of his conviction. Moreover, defendant himself submitted a copy of the same unsigned abstract of judgment, as well as his executed plea agreement in which he agreed to plead guilty to voluntary manslaughter in case number CR60589, as an exhibit to his motion to strike his prior convictions.

Substantial evidence thus supported the trial court’s finding of defendant’s prior voluntary manslaughter conviction.

IV. The Matter Must Be Remanded for the Trial Court to Exercise Its Discretion Whether to Strike Defendant’s Serious Felony Enhancements Pursuant to SB 1393.

While this appeal was pending, SB 1393, effective January 1, 2019, amended section 667, subdivision (a), and section 1385, subdivision (b), to give trial courts discretion to strike the imposition of a five-year sentencing enhancement for a prior serious felony conviction. (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).) SB 1393 applies retroactively to nonfinal judgments of conviction where a serious felony enhancement was imposed at sentencing. (Id. at pp. 971–972.) Remand is required to allow a court to exercise its new discretion “unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. [Citation.]” (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; see also Garcia, supra, at p. 973, fn. 3.)

We agree with the parties that the trial court did not clearly indicate whether it would strike the serious felony enhancements if it had discretion to do so. Therefore, the matter must be remanded for the trial court to consider striking one or both of defendant’s previously mandatory five-year enhancements imposed under section 667, subdivision (a)(1).

V. Upon Resentencing, the Trial Court Must Prepare an Amended Abstract of Judgment.

The People correctly note that the abstract of judgment only reflects the imposition of one five-year enhancement under section 667, subdivision (a)(1), which conflicts with the oral pronouncement of judgment and the minute order. The oral pronouncement of judgment controls when it differs from the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, after the trial court determines whether to strike one or both serious felony enhancements, it shall prepare an amended abstract of judgment that accurately reflects defendant’s sentence.

DISPOSITION

The matter is remanded for resentencing pursuant to section 667, subdivision (a), and section 1385, subdivision (b), as amended by SB 1393. Upon resentencing, the trial court is directed to prepare an amended abstract of judgment and forward a certified copy of it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.

HOFFSTADT

Filed 5/3/19 Marriage of Louis CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re the Marriage of IMANE and JEAN JACQUES LOUIS. H045818

(Monterey County

Super. Ct. No. DR56656)

IMANE THIMOTHEE LOUIS,

Respondent,

v.

JEAN JACQUES LOUIS,

Appellant;

MONTEREY COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,

Respondent.
Appellant Jean Jacques Louis (Husband) appeals orders entered in March 2018 modifying his child support and spousal support obligations to Respondent Imane Thimothee Louis (Wife). We find no abuse of discretion in the trial court’s orders, and thus affirm the orders.

I. FACTUAL AND PROCEDURAL HISTORY
II.
At the outset, we note deficiencies in the record on appeal. Husband has the burden of ensuring we have a sufficient record on which to assess his claims. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) Husband designated a limited record on appeal, consisting of only the amended petition for dissolution, the Monterey County Department of Child Support Services’s (DCSS) July 2017 motion to modify child support, Husband’s September 2017 request to modify spousal support, the two resulting orders, both filed March 26, 2018, modifying child and spousal support, the notice of appeal, and the trial court’s register of actions. Husband did not designate any additional substantive pleadings; nor did he designate the reporter’s transcripts from any relevant hearings in the trial court. With that in mind, we discuss the relevant history we are able to glean from the limited record.

The parties married in 2007; Wife initiated a family law case in 2015 by filing a petition for legal separation. She subsequently amended the petition to file for dissolution in February 2016. There are three minor children of the marriage. At the relevant time, Husband was an officer in the United States Army. In April 2017, the trial court ordered Husband to pay Wife $3,189 per month in child support. At that time, the court imputed Wife with $1,387 in monthly income; the record does not indicate the income figure the court used for Husband, except to indicate the court included $3,233 per month in “BAH” and “BAS.” Husband was the noncustodial parent, with the court using a 5 percent visitation factor to calculate support.

In a judgment entered in June 2016, the trial court also ordered Husband to pay spousal support to Wife in the amount of $1,800 per month. There is no information in the record about the factors the trial court considered in entering this order; the judgment itself is not part of the record.

The trial court’s register of actions suggests DCSS became involved in the case in 2015, prior to Wife filing her amended petition. In July 2017, DCSS filed a motion to modify child support on the grounds Husband was no longer receiving monthly BAH, and had, in fact, received notice from the Army that it had overpaid BAH from October 1, 2016, through April 30, 2017, such that Husband owed his employer over $18,000. DCSS asked the court to reduce Husband’s child support obligation to $2,747 per month based on Husband earning $7,585 in gross monthly base salary, and $1,417 per month in non-taxable income from his BAS and “BAQ-DIFF.” DCSS included in its calculation that Husband paid $1,095 per month for child support from another relationship, $1,800 per month in spousal support for this relationship, $75 per month for job-related expenses, and $29 per month for health insurance. DCSS based these inputs on an income and expense declaration signed by Husband in June 2017, including the then most recent earning statement attached to that declaration, reflecting Husband’s pay in May 2017.

In September 2017, Husband, representing himself, filed a separate motion to modify his spousal support obligation, as his income decreased once the Army determined he was not eligible for BAH, and because he has to repay the BAH he received. Husband indicated his earnings before taxes and deductions was $8,299, referencing his “earnings statements of the last three months,” which were not attached to the motion and are not included in the record on appeal. He estimated $6,700 per month in take-home income, from which he paid $6,084 in child and spousal support, leaving only about $600 to pay his other expenses.

The trial court held a hearing on both motions on February 9, 2018; it issued two written orders, one for each motion, on March 26, 2018. The court reduced Husband’s spousal support obligation to $1,500 per month effective October 1, 2017. The record contains minimal information about the evidence on which the court based its ruling, but for the following paragraph included in the order: “The court heard testimony and evidence regarding Family Code 4320 factors and finds that [Husband] has met his burden regarding change of circumstances concerning the decrease in income (i.e. BAH) that he is receiving. Despite the change in circumstances, the court finds that [Wife] has a continued need for spousal support and that she is making a good faith effort to contribute to her earning ability and to improve her marketable skills. . . . Based on the disparity of income spousal support is reduced to $1500.00 per month. . . .”

As required by California Rules of Court, rule 5.275(j)(1)(a), the trial court then used the Department of Child Support Services’ California Guideline Child Support Calculator program to reduce Husband’s child support obligation to $2,378 per month, beginning July 30, 2017. The court attributed Husband with $7,831 per month in taxable gross income, and $400 in non-taxable gross income. It included the $1,095 he paid in child support from another relationship, the $75 he paid for job-related expenses, and the $29 he paid for health insurance in the calculation as well; it input the reduced spousal support of $1,500 into the new calculation.

Husband filed his notice of appeal in propria persona on April 20, 2018; when describing the order from which he was appealing, Husband wrote the order entered “3/26/2018” and “Family Code 4320.” In his notice designating the record on appeal, Husband did not specify any proceedings to be included in a reporter’s transcript or settled statement. The Judicial Council form affords the appellant an opportunity to specify the points he or she intends to raise on appeal if the designated proceedings for a reporter’s transcript or settled statement do not include all of the testimony in the superior court; Husband indicated in his response his objections to both the child support and spousal support orders. Both March 26, 2018 orders are appealable either as orders entered after judgment (Code Civ. Proc. § 904.1, subd. (a)(2)) or as independently appealable interlocutory orders (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368-369; In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 637-638.) Husband timely noticed his appeal of both orders. (Rule 8.104(a)(1).)

III. DISCUSSION
IV.
On appeal, Husband contends the trial court erred in failing to properly consider his payment of $760 per month towards his BAH debt in calculating child support and spousal support. He generally alleges he is not able to pay the amount of total support the trial court ordered. Husband failed to provide this court a sufficient record to determine whether the trial court properly exercised its discretion in ordering child and spousal support. For this reason, we affirm the trial court’s orders.

While the trial court’s March 26, 2018 spousal support order indicates the court heard testimony and evidence at the February 2018 hearing, Husband did not designate a reporter’s transcript from that hearing as part of the record on appeal. Husband has the burden of ensuring we have a sufficient record on which to assess his claims. (Jameson, supra, 5 Cal.5th at pp. 608-609.) “. . . [I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.] ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ’ [Citation.] ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ [Citation.] [Fn. omitted.]” (Ibid.) The Judicial Council form Husband completed to designate the record on appeal (form APP-003) gives an option to proceed without a record of the oral proceedings in the superior court. It notifies the appellant that doing so means “the Court of Appeal will not . . . consider what was said during those proceedings in determining whether an error was made. . . .” (Judicial Council Forms, form APP-003 at p. 1.) Husband did not check the box indicating his intent to proceed without the record of oral proceedings.

It is not clear from the record that Husband asked the trial court to consider his $760 monthly payment to the Army in calculating child support or reassessing his spousal support obligation. Notably, this is one of the facts Husband recited that appears to be outside of the record. (See fn. 6, ante.) While the record confirms Husband owes a significant amount of money, it does not specify the terms of any repayment arrangement he made with the Army. None of the earnings statements DCSS provided with its motion to modify child support include a $760 deduction. DCSS asked the court to reduce the amount of income attributed to Husband based on him no longer receiving the BAH. Husband similarly argued to the trial court in his spousal support motion that the previous orders took into account BAH to which he was no longer entitled. As a general rule, in order to raise issues on appeal, Husband had to first raise them in the trial court. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603.) “The general rule against new issues is subject to an exception that grants appellate courts the discretion to address questions not raised in the trial court when the theory presented for the first time on appeal involves only a legal question determinable from facts that are (1) uncontroverted in the record and (2) could not have been altered by the presentation of additional evidence.” (Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228, 1237-1238.) The question of whether the trial court could adjust either child support or spousal support based on Husband’s debt payment is not a legal question determinable from uncontroverted facts incapable of being altered by the presentation of additional evidence.

Even if the trial court did consider Husband’s argument, there is insufficient information in the record for us to find that the trial court abused its discretion in either the child support or spousal support orders. We review the child support orders for abuse of discretion, taking into consideration that child support is a “ ‘highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule. [Citations.]’ [Citation.]” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283; accord In re Marriage of Lim & Carrasco (2013) 214 Cal.App.4th 768, 773-774.) Husband does not argue that the trial court erred in calculating child support pursuant to the statewide guideline child support formula, set forth in Family Code section 4055. The court is required to calculate support using this formula. (§ 4052.) The resulting calculation is presumed to be correct, and may only be rebutted by “admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Section 4053, because one or more of the [enumerated] factors is found to be applicable by a preponderance of the evidence. . . .” (§ 4057, subd. (b).) One of the enumerated factors is a catch-all, allowing deviation from guideline if “[a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case.” (§ 4057, subd. (b)(5).) The record before us does not indicate Husband asked the trial court to deviate from guideline, or that he produced admissible evidence showing that application of the guideline formula would be unjust under the special circumstances of the case. To the extent Husband did make this argument to the court, given the absence of a reporter’s transcript, we presume the evidence presented by Wife or DCSS authorized the court to deny Husband’s request for deviation. (Jameson, supra, 5 Cal.5th at p. 609.)

With respect to Husband’s objection to the trial court’s determination of spousal support, “ ‘The trial court has broad discretion to decide whether to modify a spousal support order. [Citation.]’ [Citation.] In exercising that discretion, the court must consider the required factors set out in section 4320. [Fn. omitted.] [Citation.] The court has discretion as to the weight it gives to each factor [citation], and then ‘ “the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of [its] discretion.” [Citation.]’ [Citation.] Failure to weigh the factors is an abuse of discretion. [Citation.]” (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1273.) The trial court’s written order states it “heard testimony and evidence regarding Family Code 4320 factors.” As we do not have the reporter’s transcript, we presume this statement means the court considered each of the factors, including Husband’s ability to pay support (§ 4320, subd. (c)), and assigned each factor appropriate weight. We presume the evidence Wife presented at the hearing authorized the order made by the court, despite Husband’s complaints that he does not have the ability to pay the amount ordered. (Jameson, supra, 5 Cal.5th at p. 609.)

In short, given the absence of a record demonstrating an abuse of discretion on the part of the trial court, we have no basis under the law to reverse its child and spousal support orders. What evidence the record provides demonstrates that the trial court considered Husband’s change in circumstances and adjusted the orders accordingly within the bounds of its discretion.

V. DISPOSITION
VI.
The orders filed March 26, 2018, are affirmed.

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Greenwood, P.J.

WE CONCUR:

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Bamattre-Manoukian, J.

______________________________________

Danner, J.

Louis v. Louis

No. H045818