Filed 1/16/20 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNY NUNEZ LOPEZ,

Defendant and Appellant.

F074405

(Super. Ct. No. F13911536)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge.

Richard M. Oberto for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

While intoxicated, defendant Johny Nunez Lopez shot two people and assaulted a third person with a semiautomatic weapon. Defendant was thereafter arrested and charged with attempted willful, deliberate and premediated murder of Dylan F. (Pen. Code, §§ 664, 187, subd. (a)) (count 1); attempted murder of Joey C. (§§ 664, 187, subd. (a)) (count 2); assault with a semiautomatic firearm against Joey C. (§ 245, subd. (b)) (count 3); shooting at an inhabited dwelling causing injury to Angel U. (§ 246) (count 4); assault with a semiautomatic firearm against Angel U. (§ 245, subd. (b)) (count 5); and discharging a firearm with gross negligence (§ 246.3, subd. (a)) (count 6). During trial, the court dismissed counts 5 and 6 and the related special enhancement allegations under sections 12022.5, subdivision (a), and 12022.7, subdivision (a). The jury convicted defendant of second degree attempted murder, the lesser offense of willful, deliberate and premeditated attempted murder on count 1, and found defendant guilty on counts 2, 3 and 4. The jury also found true the following special enhancement allegations: defendant personally and intentionally discharged a firearm, which caused great bodily injury (GBI) in the commission of attempted murder and in the commission of shooting at an inhabited dwelling (counts 1 & 4) (§ 12022.53, subd. (d)); defendant personally used a firearm during the commission of an attempted murder (count 2) (§ 12022.53, subd. (b)); and defendant personally used a firearm in the commission of a felony (count 3) (§ 12022.5, subd. (a)).

The trial court sentenced defendant to the upper term of nine years for attempted murder (§§ 664, 187, subd. (a), 1170.1, subd. (a)) (count 2), plus an additional 10 years for personally using a firearm in the commission of the offense (§ 12022.53, subd. (b)). The court imposed a consecutive determinate term of two years four months (one-third the middle term of seven years) for second degree attempted murder (count 1) (§§ 664, 187, subd. (a), 1170.1, subd. (a)). The court also imposed a consecutive term of one year eight months (one-third the middle term of five years) for shooting at an inhabited dwelling (§§ 246, 1170.1, subd. (a)) (count 4). On count 3, the court imposed the upper term of nine years for assault with a semiautomatic firearm (§ 245, subd. (b)), and for the related firearm enhancement allegation found true, the court imposed the upper term of 10 years (§ 12022.5, subd. (a)); however, pursuant to section 654, the court stayed the sentence on count 3 and the associated firearm enhancement. Finally, as to the enhancement allegations pursuant to section 12022.53, subdivision (d), found true as to counts 1 and 4, the court imposed two consecutive indeterminate terms of 25 years to life. The total term imposed was 23 years determinate, followed by two consecutive indeterminate terms of 25 years to life.

On appeal, defendant makes multiple claims of error: (1) the conviction for attempted murder under count 2 is not supported by substantial evidence; (2) refusing to instruct the jury on unconsciousness and involuntary intoxication; (3) improperly admitting evidence of gang membership; (4) instructing the jury on voluntary intoxication and consciousness of guilt together, creating an irrational permissible inference that violated defendant’s federal constitutional rights; and (5) cumulative error. Finally, defendant argues a new sentencing hearing is required under Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1, 2 (Senate Bill No. 620)) to permit the trial court an opportunity to strike or dismiss the firearm enhancements as to each of the four convicted counts.

The People dispute each assertion of error and contend a new sentencing hearing would be futile because the trial court implicitly indicated its unwillingness to strike or dismiss the firearm enhancements under Senate Bill No. 620.

We agree with defendant that a new sentencing hearing is required pursuant to Senate Bill No. 620 so that the court may elect to exercise its discretion to strike or dismiss the firearm enhancements under sections 12022.5, subdivision (a), and 12022.53, subdivisions (b) and (d). In all other respects, the judgment is affirmed.

FACTUAL SUMMARY

I. Prosecution’s Case

A. Witnesses’ and Victims’ Accounts of the Underlying Events

On the evening of December 8, 2013, Joey was helping her brother, Dylan, search for his dogs, who had gotten loose in the neighborhood surrounding his house. Joey was driving around looking for the dogs and asking people who were outside whether they had seen the dogs when she saw a man, later identified as defendant, walking on a sidewalk in the neighborhood. He did not seem threatening, nor did his gait indicate intoxication—he was steady on his feet. Joey opened her car door and asked whether he had seen any dogs. Defendant’s face twisted into an angry scowl, and he ran to Joey yelling, “What, nigga? What, nigga? What?” Joey saw defendant reach for a gun in his waistband, which he then placed at the back of her head. She heard the gun omit a clicking sound, but no bullet fired. She quickly laid down across the front seat, pushed the gas pedal down, and drove away.

Meanwhile, Dylan was in his front yard calling for his dogs. Hearing Dylan, his neighbor Angel came out of his house along with his pregnant wife to inquire what Dylan was doing. During their conversation, Dylan heard a “pop” sound; Dylan turned around and saw a man he had never seen, later identified as defendant, walking toward him saying, “‘I know you, motherf—er. I’m going to kill you.’” Dylan tried to talk to defendant, but defendant pointed a gun at him. Dylan started backing up, trying to reason with defendant, and attempted to maneuver himself so his neighbor’s truck was between him and defendant. Defendant fired the gun, hitting Dylan in the chest. Defendant kept advancing on Dylan until there were only six feet between them, with the gun trained on Dylan the entire time. Defendant fired the gun again, striking Dylan in the stomach. Dylan dropped to the ground and crawled under the truck. Defendant leaned down and shot Dylan a third time, striking him in the lower part of his stomach. Dylan crawled out from underneath the truck and ran while defendant followed him, firing the weapon. In total, Dylan heard six to nine shots. When interviewed later by police, Dylan told them he believed defendant was under the influence.

When defendant began advancing on Dylan, Angel and his wife went back into their house for safety. During the altercation with Dylan, one of the shots defendant fired went through a window of Angel’s house and struck Angel’s finger, which required surgery.

Dylan’s neighbor, Donald, also witnessed a portion of the events. He was sitting on his porch when he heard someone down at the left corner of the street “screaming [and] yelling about something.” Donald turned off his porch light and saw a man, later identified as defendant, walking down the street yelling and firing a gun in the air. Defendant, who did not appear to be stumbling or having difficulty firing the weapon, walked down the street and around the corner; Donald heard a woman scream followed by the sound of five or more gunshots. Donald grabbed a bat and “took off running.” He encountered Dylan talking on a cell phone and crying; Donald sat and waited with Dylan on the side of the road until an ambulance arrived to transport him to a hospital, where he underwent surgery.

Another of Dylan’s neighbors, Gina, heard noises that sounded like fireworks; she told her husband Juan, and he went outside to check. She subsequently heard arguing outside the house, and when she looked outside she discovered Juan trying to calm another man, later identified as defendant, who had a gun. Gina then told her father, who was also in the house, about the man with the gun and her father joined Juan outside. Juan and defendant began wrestling for the gun; Juan ultimately ended up with the gun in his hand; the police then arrived and detained both Juan and defendant.

B. Arresting and Investigating Officers

Deputy Gauthier was dispatched to the scene at 10:45 p.m.; upon her arrival, she was assigned to search defendant. She found .45-caliber unexpended bullets in defendant’s pocket, a cell phone and a wallet. Defendant made several spontaneous statements while he was detained by Gauthier. He first stated, “I’m not trying to get blamed for something I didn’t do,” and “it’s not me.” He then also said, “WFN,” “F— those mutts,” “f— those bullfrogs,” and “I don’t give a f—.” He also then made a statement regarding the mother of his child: “F—— bi—, my [baby mama] keeps pushing me. She’s acting like a stupid bitch. Just take me to county. I want to get to my bunk.” Gauthier believed defendant was very intoxicated; he exhibited slurred speech and there was a strong odor of alcohol; he was unstable on his feet and his eyes were bloodshot. Subsequently, defendant was transported to the county jail, and a blood-alcohol test was performed at some point while he was in custody.

A firearm was collected at the scene of defendant’s arrest, and it was booked into evidence. The gun was identified as a .45-caliber semiautomatic Glock. In testing, the firearm malfunctioned every time it was fired. The slide would not allow the gun to be fired in semiautomatic mode; after pulling the trigger, the slide would lock back and would have to be manually released before another cartridge could be loaded into the chamber and fired. While the gun could still be fired, it required this extra step, and it was not manufactured to function that way.

C. Evidence of Defendant’s Gang Membership

The prosecution pursued a theory defendant was a WFN gang member who misunderstood Joey’s question about the dogs to be a challenge from a rival gang member for which defendant retaliated by attempting to shoot Joey in the head. To establish this motive, the prosecution introduced evidence that defendant was associated with the West Fresno Norteño (WFN) gang, a subset of the Norteño gang.

1. October 23, 2008

Fresno Police Department Officer Anthony Vallez was dispatched to an apartment complex on October 23, 2008, where he found people outside the building pointing to a vehicle. He initiated a traffic stop of that vehicle, which was driven by defendant. During the stop, defendant told Vallez that he was a Norteño gang member.

2. May 7, 2009

Fresno Police Department Officer David Fenstermaker conducted a search of defendant’s bedroom on May 7, 2009. In the bedroom, he observed what he characterized as “gang indicia,” including a red baseball cap with the letter “W” on it, a red bandana, and a CD case with the name “Smiley” on it along with the words “West Fresno Norteño.” There were also numerous pieces of paper with Norteño graffiti on them.

3. September 1, 2009

Fresno Police Department Officer Manuel Maldonado testified he contacted defendant on September 1, 2009. Defendant told Maldonado he was a Norteño gang member, showed him hand gestures that were gang signs, including making an “N” with his hand; he showed the officer his tattoos: one hand had tattoos of a “14,” a web, and four dots; on the other hand, he had a tattoo of one dot. His stomach was tattooed with the letters “WFN.” Defendant reported he had been in the gang for four years at that time.

4. October 20, 2009

Fresno Police Department Officer Greg Jouroyan testified he was dispatched to an intersection in Fresno on October 20, 2009, where he encountered two witnesses to a stabbing, one of whom was defendant, who provided him with the direction of a suspect’s travel. Defendant told Jouroyan he and his friend were approached by five males, one of whom stabbed his friend. In giving this information to Jouroyan, he admitted he was a Norteño gang member and that, after the stabbing, the suspect raised his shirt and on his chest there was a tattoo of a bulldog.

D. Gang Expert Testimony

California Highway Patrol Officer Ryan Yetter testified as an expert on the Norteño gang in Fresno County, of which the WFN gang is a subset. He currently works with an investigative gang unit in Fresno County and has interviewed more than 500 gang members, including over 75 members of the Norteño gang, and more than five members of the WFN subset of the Norteño gang. His work focuses mostly on the Norteño gang, which is a Hispanic street gang rooted in the Nuestra Familia prison gang that started in the 1960’s in the California prison system. The primary criminal activity associated with WFN is firearm possession, and the two primary gang rivals of WFN in Fresno County are Sureños and Bulldogs. Bulldogs are former Norteños who broke off and formed a new street gang.

Yetter testified about gang culture and how status in the gang is garnered or lost. While money is important to cultivating or earning respect, respect is also built by instilling fear in others. Gang members want to be feared by the public and/or their rivals. Respect can be elevated in different ways, but the primary avenue is to commit acts of violence; cultivating a reputation for being violent and carrying a firearm to use for violence all help to garner more respect. A gang member’s level of respect can drop when there is a failure. For example, when a gang member has an opportunity to commit violence against a rival gang member or in a manner that would bolster the gang’s reputation, shying away from those activities or refusing to participate in them would cause a loss of respect. Respect is very important to the WFN gang.

Law enforcement identifies gang members based on a totality of the circumstances, but there are indicators that strongly suggest gang membership such as self-admitting gang membership, gang tattoos, wearing gang clothing, showing gang hand signs, associating or hanging out with other gang members, committing crimes and being arrested with other gang members. Gang members identify with their gangs in different ways, including the colors they wear, the signs or symbols they use or display, or a specific turf they claim. Gang tattoos and self-admitting weigh extremely heavy to law enforcement in validating a person’s gang membership. The WFN gang has approximately 100 members who use several identifying names or symbols, including “WFN,” the words “West Fresno Norteño,” the letter “N” for Norteño; the number 14 because “n” is the 14th letter in the alphabet, a “1” and a “4” separated to signify “14,” one dot and four dots separated to signify “14,” and the color red.

Yetter opined defendant was an active WFN gang member. In forming that opinion, he considered defendant’s prior contacts with law enforcement where he admitted being a WFN member, wearing gang colors, displaying gang symbols, and the various tattoos on defendant’s body: the letters “WFN” tattooed on his stomach in large block lettering, and on his left wrist he has four tattooed dots, which are significant for the number 14 or the letter N.

Yetter also testified that he considered defendant’s statements when he was arrested, including that defendant said, “WFN, what’s up?”, which is a proclamation of pride or gang membership. During his arrest defendant said “It was me. F— those mutts” and “f—ing bullfrogs”; “mutts” and “bullfrogs” are derogatory terms used for Bulldogs when trying to disrespect them. Based on this information, including the evidence of defendant’s prior contact with law enforcement, Yetter opined defendant was an active gang member on December 8, 2013.

Yetter testified hypothetically that if a Bulldog member saw a WFN member out on the streets, the Bulldog might confront the WFN with the disrespectful challenge, “[W]hat’s up dog?,” which is not a greeting but a method of “hitting somebody up.” The challenged WFN member would be expected to confront that person, and if that person did not back down, the WFN member would be obligated to attack. Killing a rival gang member who said “dog” to a WFN member would elevate that WFN gang member’s status. Conversely, if the WFN gang member did not respond to such a challenge, that WFN member would likely be disciplined. Additionally, if a WFN member were walking down the street and someone drove by in a car and said the word “dog” to that WFN, it would elevate that WFN gang member’s status and garner even more respect if he retaliated by putting a gun to the challenging individual’s head and pulling the trigger; nevertheless, it is not common to attack regular citizens simply because of the use of a word like “‘dog.’” As for other words denoting a challenge, Yetter explained the term “‘nigga’” could be a challenge or a term of endearment, depending on context, but it did not necessarily refer to a person of a specific ethnicity.

II. Defense Case

A. Defendant’s Testimony

On the day of the incident, defendant had friends staying at his house; he argued with his child’s mother when she stopped by to drop off his daughter; the child’s mother ultimately refused to leave their daughter with defendant while he had female friends staying at the house. After she left, defendant starting drinking beer; he and his friends stayed at the house until the afternoon, when additional friends came over to smoke marijuana. Around 4:30 in the afternoon, the group decided to go to a casino, purchasing more beer along the way; defendant had one 24-ounce can of beer. They also bought more marijuana and smoked it in the casino parking lot. Once inside the casino, defendant ate, played blackjack, and then ordered a mixed drink identified as an AMF (“adios motherf—er”), which was a large drink with seven different types of liquor mixed into it. Defendant had three AMF’s. He finished the second AMF about 6:00 p.m., but did not remember finishing the third drink. He remembered nothing after texting his girlfriend when the football game was over, before he left the casino; the next thing he remembered was waking up in a booking holding cell and being informed of the charges against him.

Defendant did not recognize either Joey or Dylan; he remembered nothing about firing the gun that night or any other events that occurred after he left the casino. Defendant admitted he was interviewed by Dr. Howard Terrell, but defendant asserted he never told Dr. Terrell that he remembered going home and getting his gun that night because he could not remember leaving the casino or anything after that. Defendant also asserted he never told Dr. Terrell that he recalled peace officers wrestling him down and putting him into a police car.

Defendant admitted he has been a member of the WFN gang since he was 13 years old and that their main rival is the Bulldogs. Defendant acknowledged the term “‘bullfrog’” is a term used to disrespect Bulldog gang members and that he has used that term before in arguments he has had. Although he has said “‘WFN’” after a fight in the past, he had no idea what he meant when he said “WFN” at the time he was arrested. Defendant testified he did not know any of WFN’s rules, but if someone from the Bulldog gang said to him, “‘what’s up dog?,’” he would be expected by the WFN to confront that person, and it would not be okay to back down and run away.

Defendant maintained he had no idea where he received the gun he was carrying on the night of the incident; he had never seen that gun before. He had no memory of when he loaded the gun, and he did not know the gun was not operating properly in semiautomatic mode.

Despite being a regular drinker, defendant asserted he had never had hard liquor before December 2013 and he has never blacked out from alcohol consumption before; he drinks between 12 to 15 beers four times per week; and he smokes one to three blunts of marijuana nearly every day. He had been drinking at that level since he was about 17 years old. He remembered having five beers and three AMF’s on the night of the incident.

B. Alan Barbour—Toxicologist

Alan Barbour testified as an expert in toxicology. He tested defendant’s blood-alcohol levels on the night of the incident, which showed a blood-alcohol content (BAC) of 0.22 percent. Also present in defendant’s blood was THC, which is the primary active ingredient in marijuana. THC in combination with alcohol is likely to be severely intoxicating; however, the amount of THC in defendant’s blood was a “very unremarkable” amount—too low to be consistent with heavy daily use of marijuana.

Barbour testified that at a BAC of 0.22 percent, most people would not be able to aim and fire a gun, but if someone could, one would presume a degree of tolerance to alcohol. He indicated, however, that it is unpredictable how people will act under the influence. Some people have learned to compensate for alcohol-induced physical impairments. Someone who could fire a gun and hit a target would appear to have a higher level of tolerance than average for alcohol and marijuana in combination.

C. Dr. Terrell—Psychiatrist

Dr. Howard Terrell testified as an expert in psychiatry and forensic psychiatry. He explained symptoms at various BAC’s depended on a person’s individual tolerance, but the higher the BAC, more coordination impairment, trouble with gait, slurred speech, and swinging emotions would all be expected. Some people at high levels of BAC can still physically function to drive, but they would show signs of impairment and, statistically, they would show poor reaction time, poor judgment, and poor driving skills.

Dr. Terrell explained that at 0.22 percent BAC, a person who is not exhibiting physical impairment will still experience impairment in judgment, insight, and problem-solving. Such a person may not appear intoxicated, depending on tolerance, but intellectually he or she would experience tremendous impairment: that person may be able to walk and talk, but intellectually the person would be extremely impaired. With even a modest amount of marijuana added to a 0.22 percent BAC, an individual’s judgment is even more impaired. While there is very little literature to support a synergistic effect between alcohol and marijuana, marijuana and alcohol together work like “multiplier[s]”—together rendering a person even more intoxicated.

Dr. Terrell testified, hypothetically, that if a person drinks 15 beers daily and smokes six marijuana blunts daily, when this person reaches a 0.22 percent BAC, he or she may not demonstrate poor coordination or other physical symptoms due to a built-up tolerance to alcohol, but such a person would still be very intellectually impaired. A built-up tolerance to the effects of alcohol has a greater impact on physical abilities than mental impairment—perceptually, a greater tolerance level will help control physical impairments more than intellectual impairments caused by alcohol. Dr. Terrell also opined hypothetically as to the impairment level of an intoxicated individual who can still accurately identify to which gang he belongs: “[i]f they still remember what gang, if they belong to a gang, that tells me that they are conscious enough to talk and remember what gang they might be affiliated with.”

During an interview with Dr. Terrell, defendant said he remembered on the night of the incident he went home, got a gun, and shot the gun in the air twice, but defendant did not remember shooting anyone; defendant also reported memory gaps from the time he got the gun until he recalled peace officers wrestling him down and putting him in a police car. Dr. Terrell opined these are the types of memory gaps consistent with alcohol blackout where certain memories are lost; he explained that “usually [a person] will remember bits and pieces and then there’s gaps” as “memory is impaired because of the high level of alcohol affecting the brain.” Dr. Terrell indicated memory impairment is consistent with someone at a 0.22 percent BAC, and one of the effects he would expect to occur. Nevertheless, he explained a person with a 0.22 percent BAC can still engage in goal-directed behavior.

DISCUSSION

I. Substantial Evidence Challenge to Attempted Murder Conviction (Count 2)

A. Background

Defendant argues the evidence was insufficient to establish he formulated a specific intent to kill Joey. According to defendant, the only rational interpretation of his reaction to Joey’s question about dogs was that his intoxication had so impaired his thinking and disconnected his thoughts and actions, defendant lacked any specific criminal intent. If defendant had acted on a gang motive in responding to Joey, the motive was so “badly misplaced that it only confirmed the extreme impairment in his insight, judgment, and executive function and his lack of subjective awareness of what he was doing.”

The People maintain there was ample evidence to support the attempted murder conviction as to count 2. While there was evidence defendant mistakenly believed Joey was a Bulldog gang member, even without evidence of his motive, defendant pulled out a gun, pressed it to the back of Joey’s head, and pulled the trigger; there is no other explanation for his behavior than he intended to kill Joey. Moreover, while there was evidence defendant was intoxicated, there was also evidence defendant had a high tolerance for alcohol along with expert testimony that a person with a 0.22 percent BAC could still engage in goal-directed behavior.

B. Standard of Review

“The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense” (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) “The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Zamudio, supra, at p. 357.)

“In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (People v. Zamudio, supra, 43 Cal.4th at p. 357.) “‘[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt .…’” (People v. Nguyen, supra, 61 Cal.4th at pp. 1055–1056.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio, supra, at p. 357.) However, “speculation, supposition and suspicion are patently insufficient to support an inference of fact.” (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)

C. Analysis

“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.) “Attempted murder requires express malice, i.e., intent to kill.” (People v. Stone (2009) 46 Cal.4th 131, 139.) Express malice is shown when the defendant “‘either desires the victim’s death, or knows to a substantial certainty that the victim’s death will occur.’” (People v. Houston (2012) 54 Cal.4th 1186, 1217.) “[E]vidence of motive is often probative of intent to kill,” but it “is not required to establish intent to kill.” (People v. Smith (2005) 37 Cal.4th 733, 741.) There is rarely direct evidence of a defendant’s intent to kill; such intent generally must be derived from the circumstances of the attempt, including the defendant’s actions. (People v. Lashley (1991) 1 Cal.App.4th 938, 945–946.)

Here, despite defendant’s intoxication, the jury concluded he acted with a specific intent to kill Joey, which is supported by substantial evidence. A desire to kill Joey in retaliation, even if mistaken, was consistent with defendant’s specific gang affiliation. (People v. Avila (2009) 46 Cal.4th 680, 701 [“‘mental state required to convict a defendant of attempted murder, may … be inferred from the defendant’s acts and the circumstances of the crime’”].) Defendant admitted he was a WFN gang member whose main rival is the Bulldog gang. Expert testimony established the primary currency in gang culture is respect that is garnered through acts of violence intended to inspire fear in rival gang members and in the community. Gang members must respond to challenges from rivals to maintain respect; specific to WFN and Bulldog gangs, a Bulldog “hitting somebody up” a WFN with a question of “what’s up dog?” would be a challenge demanding a response and retaliation, perhaps violent retaliation. Defendant explained consistently with the prosecution’s gang expert that a Bulldog calling a WFN a “‘dog’” is a sign of disrespect and retaliation to maintain respect would be expected. Given this contextual backdrop, when Joey called out to defendant asking about literal “dogs,” there was evidence defendant would have been inclined, even if mistakenly in his inebriated state, to interpret this as a challenge demanding immediate and violent retaliation. Moreover, defendant had witnessed his friend being stabbed by a Bulldog gang member in the past, which was personal motivation to kill Joey once he considered her a Bulldog issuing a challenge.

Defendant’s physical actions were also evidence of his specific intent to kill. Defendant ran to Joey’s car angrily, put the gun to Joey’s head, and, given the clicking sound Joey testified hearing combined with evidence of the gun’s malfunctioning, pulled the trigger unsuccessfully. Placing the gun directly against Joey’s head and pulling the trigger is an execution-style manner of killing that is strong circumstantial evidence of defendant’s intent to kill, not just injure or frighten. (People v. Bolden (2002) 29 Cal.4th 515, 561 [the “defendant could have had no other intent than to kill” when he plunged a knife deeply into a “vital area of the body of an apparently unsuspecting and defenseless victim”].) Defendant’s motive to kill along with his physical actions constituted substantial evidence of his intent to kill and support his conviction for the attempted murder of Joey.

II. Claims of Instructional Error

Defendant argues two separate instructional errors were committed by the trial court. The People dispute any error in the instructions and even assuming there was error, it was harmless. We agree with the People.

A. Involuntary Intoxication and Unconsciousness Instructions

1. Background

At trial, defendant requested jury instructions on involuntary intoxication and unconsciousness, which the trial court declined to give. Relying on People v. Chaffey (1994) 25 Cal.App.4th 852 (Chaffey), defendant maintains whether he was voluntarily or involuntarily intoxicated was a question of fact for the jury, and the jury should have been instructed on both types of intoxication. Moreover, there is substantial evidence defendant was unconscious at the time of the charged conduct; because there is evidence his intoxication was involuntary, the jury also should have been instructed on unconsciousness as a complete defense. Defendant contends this instructional error violated both state and federal law, and he is entitled to per se reversal for the trial court’s failure to so instruct.

The People maintain there is no substantial evidence of involuntary intoxication or unconsciousness to warrant a jury instruction on either of these issues. Further, even if there were evidence to support those instructions, the failure to give the instructions was harmless under any applicable harmless-error standard.

2. Standard of Review

Whether a trial court is required to give a requested jury instruction stems from the fundamental principle that a “defendant, upon proper request therefor, has a right to an instruction to direct the jury’s attention to evidence from which a reasonable doubt of his guilt could be inferred.” (People v. Jeffers (1996) 41 Cal.App.4th 917, 924–925.) “The trial court has an obligation to instruct on defenses ‘“only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.”’” (People v. Barton (1995) 12 Cal.4th 186, 195.) However, the court must give a requested instruction concerning a defense only if there is substantial evidence to support the defense. (Ibid., fn. 4.) A trial judge has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence. (Ibid.) The trial court’s alleged failure to instruct on a defense theory that is supported by substantial evidence is reviewed de novo. (People v. Sisuphan (2010) 181 Cal.App.4th 800, 806.)

3. Legal Framework

Section 26 exempts from criminal liability “[p]ersons who committed the act charged without being conscious thereof.” (§ 26, class four.) This type of “[u]nconsciousness does not mean that the actor lies still and unresponsive. Instead, a person is deemed ‘unconscious’ if he or she committed the act without being conscious thereof.” (People v. Haley (2004) 34 Cal.4th 283, 313.) Unconsciousness, when not voluntarily induced, is a complete defense to a charged crime. (People v. Rogers (2006) 39 Cal.4th 826, 887.)

Voluntary intoxication includes “voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance.” (§ 29.4, subd. (c).) Evidence of voluntary intoxication is admissible as to whether a defendant actually formed a required specific intent or mental state for the charged crime (id., subd. (b)), but voluntary intoxication is not a defense to a general intent crime (People v. Velez (1985) 175 Cal.App.3d 785, 791 (Velez)). Thus, “[u]nconsciousness caused by voluntary intoxication is governed by Penal Code section [29.4],[ ] rather than section 26, and it is not a defense when a crime requires only a general criminal intent.” (People v. Conley (1966) 64 Cal.2d 310, 323–324, fn. omitted.)

Involuntary intoxication occurs “where the intoxication is induced through the fault of another and without any fault on the part of the accused .…” (Velez, supra, 175 Cal.App.3d at p. 796; see People v. Gallego (1990) 52 Cal.3d 115, 183.) Even voluntary ingestion of a prescription medication or other intoxicating substance can be considered involuntary if the person did not know or have reason to anticipate the drug’s intoxicating effects. (Chaffey, supra, 25 Cal.App.4th at pp. 855–857.) Whether intoxication is voluntary or involuntary, therefore, turns on “whether the intoxication is induced through the defendant’s fault or the fault of another or whether the defendant knows or has reason to anticipate the intoxicating effects of the substance he or she ingests.” (People v. Mathson (2012) 210 Cal.App.4th 1297, 1313 (Mathson).) Involuntary intoxication that results in unconsciousness is a complete defense to a crime. (Velez, supra, at p. 793.)

Three published cases deal specifically with the voluntary ingestion of an intoxicating substance that allegedly resulted in unexpected unconsciousness—the defendants in each case claimed the unconsciousness was therefore involuntarily induced and constituted a complete defense to their respective crimes. (Mathson, supra, 210 Cal.App.4th at pp.1314–1331; Chaffey, supra, 25 Cal.App.4th at pp. 855–858; Velez, supra, 175 Cal.App.3d at pp. 790–797.)

In Chaffey, the defendant drove to the beach, got out of her car, and attempted suicide by ingesting 120 tablets of Xanax her doctor had prescribed for anxiety and sleeplessness, which she had been taking for a year and a half. (Chaffey, supra, 25 Cal.App.4th at p. 854.) The Xanax contained a warning it would cause drowsiness and that one should not operate heavy equipment when taking the medication. (Ibid.) After ingesting the medication, Chaffey was later discovered by police driving in an erratic manner, and she was arrested. (Ibid.) Chaffey had no recollection of anything from the time she took the pills until she awoke in the hospital. (Ibid.) Her psychiatrist opined when Chaffey took the Xanax, she did not intend to drive her car, and while she was driving she was unconscious and unaware of what she was doing. (Ibid.) The trial court, sitting as trier of fact, determined Chaffey’s intoxication was voluntary because it was “‘predictable that she would go through a period of sleepiness and that something would happen,’” and the court convicted her of driving a vehicle under the influence. (Ibid.)

Over dissent, the trial judge was reversed by an appellate division of the superior court. (Chaffey, supra, 25 Cal.App.4th at p. 854.) That appellate division reasoned Chaffey did not know, and a reasonable person in her condition would not have known, that taking an overdose of Xanax would cause unconsciousness, thus her intoxication was involuntary. (Id. at p. 857.)

Upon subsequent transfer of the case, the Court of Appeal determined there was evidence to reasonably support either conclusion: on the one hand, there were facts indicating Chaffey had reason to anticipate the intoxicating effects of the drug she took—the medication label warned Xanax would cause drowsiness, and it was reasonably foreseeable—as the trial judge had found—something might occur while she was in a state of intoxication; on the other hand, Chaffey did not intend or even expect to be able to stand up let alone drive a car—becoming intoxicated and unconsciously driving a car was not necessarily predictable or foreseeable from Chaffey’s past experience with Xanax. (Chaffey, supra, 25 Cal.App.4th at pp. 857–858.) Given that both conclusions were reasonable interpretations of the evidence, the trial court’s finding of voluntary intoxication, as a factual determination, was affirmed. (Ibid.)

Mathson involved unconscious sleep-driving resulting from voluntary ingestion of the prescription drug Ambien. (Mathson, supra, 210 Cal.App.4th at p. 1301.) After being reported for erratic driving, Mathson was stopped by a police officer who observed Mathson’s eyes were droopy, watery, and glassy; his speech was slurred, and he had a dry mouth; his words were running together, he was swaying and was unsteady on his feet. (Id. at pp. 1302–1303.) Mathson was arrested for driving under the influence, and his blood test revealed he had Ambien in his system, but nothing else. (Id. at p. 1303.) At trial, Mathson testified he knew Ambien caused sedation, drowsiness or dizziness, and that it was associated with “complex behaviors” such as sleep-eating or having conversations with others while the user is asleep—which he had experienced; but he had never experienced sleep-driving. (Id. at p. 1305.) Mathson did not remember any events from the day he was arrested. (Id. at p. 1306.) Expert testimony confirmed the manufacturer of Ambien had warned health care professionals about the sleep-driving side effect, and federal law required Ambien prescriptions be accompanied by a written warning that sleep-driving is a possible side effect. (Id. at pp. 1304–1307.) An expert also opined that when Mathson was arrested, he was in a state of “sedative hypnotic intoxication” known as sleep-driving caused by the Ambien. (Id. at p. 1306.) According to the expert, the condition caused a lack of full awareness and an inability to process information in a conscious and rational manner. (Ibid.) The court submitted to the jury the question of whether Mathson’s intoxication was voluntary or involuntary and gave its own modified instructions for unconsciousness, voluntary and involuntary intoxication. (Id. at pp. 1308–1310.) The jury ultimately convicted Mathson of driving under the influence. (Id. at p. 1301.)

On appeal, the defendant argued the modified jury instructions were erroneous. (Mathson, supra, 210 Cal.App.4th. at p. 1314.) As it pertained to involuntary intoxication, Mathson asserted the jury should have been instructed to find him involuntarily intoxicated if it determined he did not know or have reason to know that Ambien would specifically cause him, as opposed to consumers in general, to sleep-drive. (Id. at p. 1326.) In rejecting this subjective standard, the court noted the instruction adequately informed the jury that involuntary intoxication results if Mathson voluntarily ingested a legally prescribed drug that caused him to act unconsciously without knowing, and he could not have reasonably known, of the drug’s intoxicating effects. (Id. at pp. 1326–1328.) In concluding any errors in the involuntary intoxication and unconsciousness instructions were harmless, the court explained the “evidence overwhelmingly establishe[d] [Mathson] knew or should have known that the Ambien he took could have caused sleep driving, even though he had not previously personally experienced a sleep-driving episode after using Ambien. Thus, [Mathson] was voluntarily intoxicated, and the unconsciousness instruction [did] not apply.” (Id. at pp. 1329–1330.)

In Velez, supra, 175 Cal.App.3d at page 785, the court concluded Velez, who voluntarily ingested marijuana allegedly without knowledge it was laced with PCP, was voluntarily intoxicated as a matter of law when he became angry, broke into the home of an elderly couple, and stabbed the husband repeatedly with a screwdriver. Velez testified that after he smoked the marijuana, the people in the room began to look like devils and he remembered only running and crawling after that; expert witnesses testified Velez’s behavior on the night of the incident was consistent with PCP ingestion. (Id. at pp. 788–789.) In rejecting Velez’s argument he was entitled to jury instructions on involuntary intoxication and unconsciousness, the court reasoned he should have known the marijuana he voluntarily ingested was potentially laced with PCP, and he had no right to expect that such marijuana would produce any predictable intoxicating effect or that it would produce an intoxicating effect different from the one it did; the court determined Velez’s intoxication was voluntary as a matter of law. (Id. at pp. 794–797.)

With this legal framework, we consider whether jury instructions for involuntary intoxication and unconsciousness were warranted based on defendant’s theory his voluntary ingestion of alcohol and marijuana resulted in unexpected unconsciousness—i.e., his criminal conduct while intoxicated was performed without conscious awareness.

4. Analysis

a. No Error

Like Chaffey and Mathson and similar to Velez, defendant claims his voluntary ingestion of alcohol and marijuana caused involuntary intoxication because it produced an unexpected intoxicating result: unconsciousness. To entitle defendant to involuntary intoxication and unconsciousness instructions on this defense theory, he must produce evidence that he suffered unconsciousness (here, the purported intoxicating effect) that he did not anticipate, nor should he have anticipated under an objective, reasonable-person standard. (Chaffey, supra, 25 Cal.App.4th at pp. 856–858; Mathson, supra, 210 Cal.App.4th at p. 1313; Velez, supra, 175 Cal.App.3d at pp. 796–797.)

Defendant argues he had never previously experienced an alcohol-induced “blackout”—i.e., unconsciousness—and his actions on December 8, 2013, were performed without any conscious awareness; he maintains the unconsciousness was entirely unexpected and unanticipated, the same as the unconscious effect Chaffey experienced from the overdose of Xanax. Just as defendant had prior experience with alcohol and marijuana, Chaffey had prior experience taking Xanax; but just like Chaffey had never experienced the specific effect of unconscious sleep-driving from Xanax, defendant had never experienced the specific effect of unconsciousness from alcohol and marijuana. The court in Chaffey concluded whether Chaffey’s unconsciousness was objectively foreseeable was a question for the factfinder to resolve—in other words, that Chaffey’s prior experience with Xanax did not include unconsciousness was substantial evidence of the lack of foreseeability of that effect and, thus, involuntary intoxication. Defendant contends under Chaffey, his testimony that he had not experienced unconsciousness from alcohol intoxication in the past was substantial evidence the resulting unconsciousness was unforeseeable, rendering the intoxication involuntary; as such, the jury should have been instructed on involuntary intoxication and unconsciousness as a complete defense.

Assuming defendant’s testimony that he had never previously suffered the specific effect of unconsciousness from alcohol and marijuana consumption is evidence of unforeseeability, to warrant an instruction for involuntary intoxication there must also be evidence of the specific effect that was unexpectedly suffered from the intoxication—here, unconsciousness. In both Chaffey and Mathson there was such evidence. Eyewitness testimony indicated Chaffey did not respond to questions when she was stopped by the police, Chaffey testified she did not remember anything between taking the pills and waking up in the hospital, and the uncontested opinion of her psychiatrist was that she was unconscious when she was driving her car due to the Xanax. (Chaffey, supra, 25 Cal.App.4th at p. 854.) Similarly, in Mathson, the defendant’s testimony he did not remember events of the incident was accompanied by expert opinion that the Ambien placed him into a state of hypnotic intoxication that precluded him from being fully aware of events or processing information in a conscious and rational manner, and that Ambien users in such a state are not fully conscious of what they are doing. (Mathson, supra, 210 Cal.App.4th at pp. 1306–1307.) There was also eyewitness testimony from the arresting officer that Mathson had droopy, watery, glassy eyes, had difficulty maintaining balance, his speech was slow and slurred, and he was swaying on his feet. (Id. at p. 1303.) Expert testimony connected these eyewitness observations to Ambien-induced sleep-driving, indicating that Ambien-induced sleep-drivers would have the appearance of a grossly intoxicated person, including slurring words, looking half asleep and swaying while standing. (Id. at p. 1307.)

In contrast to Mathson and Chaffey, the only evidence that defendant here actually experienced unconsciousness is his testimony he has no memory of his criminal conduct. The defense psychiatrist, Dr. Terrell, did not offer an opinion defendant acted in a state of unconsciousness. Dr. Terrell testified the fact that defendant remembered and articulated the name of his gang while he was intoxicated indicated he was conscious enough to remember those details. He further opined a person with a 0.22 percent BAC would be intellectually compromised such that his or her ability to deal with issues and solve problems would be tremendously impaired, but that person could still engage in goal-directed behavior. Dr. Terrell noted memory gaps and memory loss are caused by excessive alcohol levels that affect the brain, and memory loss or “alcohol blackout” is something that would be expected of someone with a 0.22 percent BAC level; Dr. Terrell did not, however, opine this memory loss was indicative of unconsciousness. Other than the basic fact defendant was intoxicated and exhibited some behavior consistent with intoxication, there is simply no evidence defendant was not conscious of his actions. No eyewitnesses testified defendant appeared to lack awareness of his actions, and there was no expert testimony defendant’s conduct displayed a lack of conscious awareness.

While defendant argues his lack of memory, standing alone, is substantial evidence of unconsciousness, this legal proposition rests on People v. Wilson (1967) 66 Cal.2d 749, 762 (Wilson) and People v. Bridgehouse (1956) 47 Cal.2d 406, 409–411 (Bridgehouse), neither of which involve unconsciousness resulting from voluntary ingestion of an intoxicating substance. Wilson and Bridgehouse involved allegations of trauma-induced unconsciousness that presented no issue whether the purported unconsciousness was voluntarily induced. Where excessive alcohol consumption is involved, it is unreasonable to infer memory loss by itself is indicative of unconsciousness instead of a byproduct of the intoxication itself—especially here where expert testimony indicated memory loss is an expected aftereffect of intoxication at a 0.22 percent BAC level. Even aside from that distinction, however, our Supreme Court has reiterated that a defendant’s testimony he experienced memory loss, on its own, is not substantial evidence of unconsciousness in any context. (People v. Rogers, supra, 39 Cal.4th at pp. 887–888 [distinguishing Wilson & holding the “defendant’s own testimony that he could not remember portions of the events, standing alone, was insufficient to warrant an unconsciousness instruction”]; see People v. Froom (1980) 108 Cal.App.3d 820, 829–830 [evidence the defendant was forgetful & told a psychiatrist he “‘awakened’” after the crime was committed did not entitle the defendant to unconsciousness instruction]; People v. Heffington (1973) 32 Cal.App.3d 1, 10 [distinguishing Wilson, supra, at p. 749 & Bridgehouse, supra, at p. 406 & holding there is no “ineluctable rule” that a defendant’s inability to remember supplies an evidentiary foundation for an unconsciousness instruction; there was no description of unawareness coexistent with the defendant’s actions from either psychiatrists or the defendant].)

When unconsciousness unexpectedly results from voluntary intoxication, substantial evidence of unconsciousness and that the unconsciousness was reasonably unforeseeable are required to warrant an instruction on involuntary intoxication. (See Chaffey, supra, 25 Cal.App.4th at pp. 854–858; Mathson, supra, 210 Cal.App.4th at pp. 1305–1307, 1326–1328.) Here, there is simply no evidence defendant lacked conscious awareness of his actions, and defendant was therefore not entitled to an instruction on involuntary intoxication. Moreover, because involuntary intoxication was unsupported, an instruction on unconsciousness was neither legally applicable nor supported by substantial evidence. (Mathson, supra, 210 Cal.App.4th at pp. 1328–1330 [unconsciousness instruction does not apply where evidence supports only voluntary intoxication].)

b. Any Error Was Harmless

Even assuming, however, instructions on involuntary intoxication and unconsciousness should have been given, under any applicable standard we find such error harmless. The jury already considered defendant’s intoxication and resulting “blackout” in the context of his ability to formulate the specific intent required for attempted murder. The failure to give an instruction is harmless where “‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant .…’” (People v. Wright (2006) 40 Cal.4th 81, 98; accord, People v. Lujano (2017) 15 Cal.App.5th 187, 195–196 [“Omission of an instruction is harmless beyond a reasonable doubt if ‘“the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.”’”].)

The trial court instructed the jury it could “consider evidence, if any, of the defendant’s voluntary intoxication … in deciding whether the defendant acted with an intent to kill, Count 2, or acted with an intent to kill [with] deliberation and premeditation, Count 1.” While the jury was not asked to determine whether defendant was unconscious when he shot the victims, it was also not told to presume he was conscious at the time. The jury had an opportunity to consider how defendant’s alcohol and marijuana use impacted his ability to form the specific intent necessary to support the attempted murder crimes. Defendant had the opportunity to argue, and did argue, to the jury his level of intoxication rendered him unable to form the requisite intent necessary for the attempted murder crimes; he was also able to, and did, assert his lack of memories from that night to support such an interpretation. Had the jury determined defendant was unconscious or blacked-out during the offenses, it would not have concluded he acted with the requisite intent to kill necessary to support the convictions on the attempted murder charges. The factual question about his mental state at the time of the offenses was clearly and necessarily before the jury. (People v. Wright, supra, 40 Cal.4th at p. 98.)

Moreover, even subject to the more stringent Chapman harmless-error standard, any error in failing to instruct on involuntary intoxication and unconsciousness was not prejudicial. (Chapman v. California (1967) 386 U.S. 18.) We conclude the record establishes beyond a reasonable doubt any error in this regard did not contribute to the jury’s guilty verdicts. (Id. at p. 24.) As in Mathson, the evidence here overwhelmingly establishes defendant’s actions on December 8, 2013, were performed with conscious awareness. He was able to process Joey’s statement to him as a gang-based challenge, even if mistakenly, and react in accord with the culture of his gang—i.e., violent retaliation. This required him to intellectually process outside, unfamiliar stimuli and formulate a response almost immediately consistent with the acceptable standards of his gang. He was able to manipulate a malfunctioning gun, as explained by the criminologist, by releasing the slide each time the gun was fired—a gun he claimed never to have seen before. Having no familiarity with that gun, it would have taken even greater intellectual processing to assess the gun’s malfunctioning and determine how to release the slide to chamber another round each time the gun was fired. Yet, defendant managed to do that quite efficiently when he shot Dylan three times and fired the weapon repeatedly in a short period of time.

Dr. Terrell opined a person with a 0.22 percent BAC would remain able to engage in goal-directed behavior, and it was clear defendant retained that ability. Defendant told Dylan he was going to kill him, and defendant engaged in continued steps to achieve that goal, assessing after each shot that although Dylan had been struck by bullets he was still alive; defendant followed Dylan around the truck after shooting him the first time, shot him a second time, and then leaned down to shoot Dylan a third time after Dylan had crawled underneath the truck. (See People v. Halvorsen (2007) 42 Cal.4th 379, 418 [purposive nature of the defendant’s conduct in driving from place to place, aiming at his victims, & shooting them in vital areas of the body suggests he was aware of his actions & not unconscious during the course of his offenses].) The ability to formulate a goal, navigate physical obstacles to the goal such as Dylan trying to hide under the truck, and then pursue the goal with near success suggests and supports an inference of conscious awareness and processing.

Defendant also engaged in an argument with Juan, the neighbor who ultimately wrestled the gun away from him; although the precise contents of that conversation were not in evidence, Juan’s widow testified she heard back and forth arguing and cussing between defendant and Juan—another indication defendant did not lack functional awareness of what was occurring. When he was arrested, defendant made comments related to his gang and implicitly referred to the argument he had had with his child’s mother earlier in the day, suggesting he was aware of his circumstances and remembered events much earlier in the day. He recognized Gauthier as a police officer: he indicated she should just take him to the county jail so he could get a bunk; this suggested he knew he was being arrested, and he was aware of what would happen to him upon arrest. Defendant’s claim of total memory loss of the events was also highly questionable when Dr. Terrell testified defendant had told him defendant remembered going home to get his gun and then shooting it. Defendant denied he told Dr. Terrell he remembered taking those actions, but Dr. Terrell confirmed those statements were recorded in his interview notes.

Finally, as to whether any unconsciousness was foreseeable, the overwhelming evidence indicated this effect was something defendant should have reasonably expected, given his past experience with beer and marijuana. He testified he only drank beer and not hard liquor, but defendant also testified he routinely drinks up to 48 beers four days a week, and he smokes “a lot [of marijuana] per day.” Not only was defendant familiar with alcohol and marijuana, he had experience with large quantities and the effects of the two substances consumed in tandem. This strongly suggested he had a wealth of experience with intoxication and its side effects, and he would have had reason to know that hard liquor, which is generally known to have a higher alcohol content than beer, would have even greater potential side effects; he knew there were seven types of hard liquor in the mixed drinks he consumed at the casino that night and that those drinks were “actually pretty big.” The evidence clearly and overwhelmingly supported only voluntary intoxication: defendant functioned with conscious awareness of his actions, and the effects of the intoxication were not unexpected or unforeseeable. Beyond all reasonable doubt, the failure to instruct on unconsciousness and involuntary intoxication did not affect the jury’s verdicts.

For all of these reasons, we conclude the trial court did not err in refusing to instruct on involuntary intoxication and unconsciousness; even to the extent this refusal was error, the error was harmless under any applicable standard.

B. Instructing on Voluntary Intoxication and Consciousness of Guilt

1. Background

Defendant asserts the trial court erred by instructing on both voluntary intoxication and consciousness of guilt.

When defendant was arrested, Deputy Gauthier testified defendant made several statements, including one to the effect that he was “not trying to get blamed for something [he] didn’t do,” and another statement that “it’s not me.” Gauthier testified defendant was “extremely intoxicated” at the time he was arrested and placed in the back of her patrol vehicle; his speech was slurred, he smelled strongly of alcohol, he was unstable on his feet, and his eyes were bloodshot. As a result of defendant’s denials upon arrest, the jury was instructed on consciousness of guilt (CALCRIM No. 362) as follows:

“If the defendant made a false or misleading statement before the trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. If you conclude the defendant made the statement it is up to you to decide its meaning and importance. However, evidence the defendant made such a statement cannot prove guilt by itself.”

The jury was also instructed on voluntary intoxication (CALCRIM No. 625), in relevant part, as follows:

“You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, Count 2, or acted with an intent to kill and deliberation and premeditation, Count 1. [¶] … [¶] You may not consider evidence of voluntary intoxication for … any other purpose.”

Relying on People v. Wiidanen (2011) 201 Cal.App.4th 526 (Wiidanen), defendant maintains that because the voluntary intoxication instruction prohibited the jury from considering his intoxication for any other purpose than whether he had the requisite specific intent for counts 1 and 2, the jury was prohibited from considering how his statements at the time of arrest may have been impacted by his intoxication: he may have been too intoxicated to know his denials were false and, thus, his denials might not have been probative of a consciousness of guilt. Defendant asserts this was instructional error and was also constitutionally defective because it allowed the jury to draw a permissive inference that was irrational and “‘not one … reason and common sense justify in light of the facts before the jury.’”

The People contend defendant’s instructional challenge has been forfeited because he did not object to the CALCRIM No. 362 (consciousness of guilt) instruction, he specifically requested and did not seek any clarifying language to the CALCRIM No. 625 instruction (voluntary intoxication), and he did not raise any of the arguments at trial that he presents here on appeal with respect to these instructions. Even assuming the argument was not forfeited, the People maintain there is no instructional error. The People maintain the court’s conclusion in Wiidanen as to instructional error was flawed; viewing the jury instructions from the entire charge of the court, a reasonable juror would have understood they were permitted to consider defendant’s intoxication in considering whether his false denials were probative of a consciousness of guilt. Finally, any instructional error was not prejudicial and did not constitute a violation of federal due process.

We conclude that even assuming state law instructional error, such an error was neither prejudicial nor constituted a due process violation under federal law.

2. Standard of Review

Whether a jury instruction correctly states the law is reviewed under the independent or de novo standard of review. (People v. Kumar (2019) 39 Cal.App.5th 557, 563.) The appellate court “must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and the entire trial record.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) “What is crucial … is the meaning that the instructions communicated to the jury. If that meaning was not objectionable, the instructions cannot be deemed erroneous.” (People v. Benson (1990) 52 Cal.3d 754, 801.) The correctness of the jury instructions “‘“is to be determined from the entire charge of the [trial] court, not from a consideration of parts of an instruction or from a particular instruction.”’” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)

3. Analysis

a. Wiidanen and McGehee Decisions

In two published cases, the Third District Court of Appeal considered jury instructions on consciousness of guilt (CALCRIM No. 362) given in combination with (1) an instruction on voluntary intoxication (CALCRIM No. 3426) (Wiidanen, supra, 201 Cal.App.4th at p. 533) and (2) mental disturbance or impairment (CALCRIM No. 3428) (People v. McGehee (2016) 246 Cal.App.4th 1190 (McGehee)). In Wiidanen, the defendant was accused of orally copulating another man at a party who was unconscious at the time. (Wiidanen, supra, at p. 528.) The defendant was intoxicated when he was subsequently interviewed by police; he denied he had been at the party when the crime occurred and denied he had engaged in the alleged conduct. (Id. at pp. 529–530.) DNA evidence produced at trial proved his statements were false. (Id. at p. 530.) In McGehee, the defendant, who was mentally disturbed, stabbed his mother to death; knowing she was dead, he falsely told his sister—who lived with their mother—their mother was absent for a variety of reasons. (McGehee, supra, at pp. 1194, 1197–1200.) In both cases, the trial courts instructed on consciousness of guilt based on false statements made before trial, CALCRIM No. 362, and instructed on voluntary intoxication, CALCRIM No. 3426 (Wiidanen), and mental illness/impairment, CALCRIM No. 3428 (McGehee).

Both CALCRIM No. 3426 and CALCRIM No. 3428 preclude consideration of voluntary intoxication or mental illness/impairment for any purpose other than deciding whether the defendants possessed the requisite mental state for the crime charged. Without any modification to these instructions, the courts in Wiidanen and McGehee determined this preclusion affected the probative value of evidence tending to show consciousness of guilt: if the jury believed the defendant’s intoxication or mental impairment prevented him from knowing the statements were false, the statements would not be probative of the defendant’s consciousness of guilt. As a result, the courts concluded it was error to give the instructions that effectively precluded the jury from considering the defendant’s intoxication as to consciousness of guilt. (Wiidanen, supra, 201 Cal.App.4th at p. 533; McGehee, supra, 246 Cal.App.4th at pp. 1204–1205.) Nevertheless, both courts determined this state law instructional error was neither prejudicial nor an error of federal constitutional dimension: the evidence before the jury reasonably indicated, despite intoxication or mental impairment, each defendant was aware of his guilt when he made the false statements. (Wiidanen, supra, at p. 533; McGehee, supra, at pp. 1204–1205.)

b. No Federal Due Process Violation

Defendant maintains the trial court in this case made the same instructional error identified by Wiidanen and McGehee, but, unlike those cases, he asserts the facts here cannot be rationally interpreted to support the suggested inference that his statements were knowingly false and therefore probative of his consciousness of guilt.

Assuming, without deciding, that instructing on voluntary intoxication (CALCRIM No. 625) and consciousness of guilt (CALCRIM No. 362) was a state law instructional error as determined by Wiidanen and McGehee, we nonetheless conclude any error in this regard was not constitutionally defective.

The consciousness of guilt instruction permits, but does not require, the jury to draw an inference that when a defendant makes a knowingly false or misleading statement before trial it may demonstrate a consciousness of guilt. “Permissive inferences violate due process only if the permissive inference is irrational.” (People v. Goldsmith (2014) 59 Cal.4th 258, 270; Francis v. Franklin (1985) 471 U.S. 307, 314–315 [“A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.”].)

While defendant distinguishes the facts of this case from those in Wiidanen, the dissimilarities do not dictate a different result. In Wiidanen, the defendant was intoxicated when he was interviewed by police, but was nonetheless able to craft a narrative of events by selectively remembering facts that tended to exculpate him and then claimed a hazy recollection of neutral facts or facts that tended to inculpate him. (Wiidanen, supra, 201 Cal.App.4th at p. 534.) This ability to make tactical decisions about which facts to reveal reasonably suggested his false statements were knowingly made regardless of the effects of any intoxication. (Ibid.) In McGehee, the defendant’s false statements were made in conjunction with elaborate efforts to prevent his sister from discovering their mother’s dead body. (McGehee, supra, 246 Cal.App.4th at p. 1206.) The court reasoned he would not have undertaken all his efforts to keep his sister from finding the body had he really believed his mother was alive. (Ibid.) From the facts before the jury, it was reasonable to infer the defendant’s false statements were indicative of his consciousness of guilt, regardless of any mental impairments he suffered. (Ibid.)

Unlike in Wiidanen and McGehee, defendant’s false statements here were not woven into a self-protective narrative or course of conduct that was crafted to deceive, but the facts before the jury reasonably indicated defendant’s denials were not random, incoherent words of someone who was too intoxicated to know or understand their falsity. Following his two statements denying any wrongdoing, defendant made the statements “It was me”; “I don’t give a f—”; F— those mutts”; and “f—–g bullfrogs.” The facts before the jury tended to show defendant’s actions toward his victims were in response to what he believed to be a rival gang encounter or a gang insult impinging on the respect he was due. Defendant’s reference to “mutts” and “bullfrogs” along with the statement, “It was me” could be reasonably interpreted as referencing his assault of Joey and his mistaken belief that Joey had called him a “dog” as a sign of disrespect to which he retaliated by putting a gun to her head and pulling the trigger. Defendant also made a statement in the patrol car about the mother of his child that, standing alone, might have seemed like a non sequitur, but defendant testified at trial he had had an argument with her earlier that day; his statement about her in the patrol car was reasonably a reference to their argument and, as such, was another indication defendant remembered and was fully aware of the events of the day despite his intoxication. Defendant also recognized and understood he was being arrested—Deputy Gauthier testified he said, “Just take me to county. I want to get to my bunk.” In other words, viewing his statements in total, it could be reasonably inferred defendant knew what he had done, and his initial denial of any wrongdoing was knowingly false and tended to indicate his consciousness of guilt. As such, the consciousness of guilt permissive inference was reasonable “in light of the proven facts before the jury,” and there was no due process violation. (Francis v. Franklin, supra, 471 U.S. at p. 315.)

c. Any Error of State Law Was Harmless

On the same factual basis that we conclude there is no due process violation, we also conclude any state law instructional error was harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson). Specifically, it was not reasonably probable that a result more favorable to defendant would have been reached if the jury had been permitted to consider defendant’s intoxication with respect to his false statements and his consciousness of guilt. The jury had already considered defendant’s intoxication, necessarily concluding it did not affect his ability to formulate the specific intent to kill. Moreover, the facts surrounding defendant’s false statements on which the consciousness of guilt inference was grounded also indicated defendant was aware of what had happened, despite his intoxication, and knew his statements were false at the time he made them—the inferential conclusion was rational regardless of defendant’s intoxication. In light of the evidence of defendant’s guilt and the evidence indicating defendant was aware of his actions despite his intoxication, even if the jury had been expressly instructed they could consider defendant’s intoxication in determining whether his false statements were knowingly made, it is not reasonably probable the jury would have reached a different result.

d. Argument Was Forfeited

Finally, as we conclude the presumed instructional error did not affect defendant’s substantial rights nor was there a miscarriage of justice, we also conclude this argument was forfeited at trial: defense counsel requested the voluntary intoxication instruction without any modification; he made no objection when he knew the consciousness of guilt instruction also would be given; and counsel made no objection to the consciousness of guilt instruction either. (People v. Anderson (2007) 152 Cal.App.4th 919, 927 [failure to object to instructional error forfeits the issue on appeal unless the error affects the defendant’s substantial rights]; see People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.)

III. Evidence of Gang Membership

A. Background

At trial, the prosecution theorized defendant tried to kill Joey when he was set off by Joey’s question about dogs, which, in defendant’s gang culture, represented a disrespectful challenge when spoken by a Bulldog gang rival. To establish this motive, the prosecution introduced evidence of four prior contacts defendant had with law enforcement showing he was a WFN gang member whose rivals include the Bulldog gang.

Defendant argues this evidence was improperly admitted because it was irrelevant character evidence, unduly prejudicial under Evidence Code section 352, and was violative of federal due process because it created impermissible character inferences.

B. Standard of Review

We review a trial court’s ruling on the admission or exclusion of evidence for abuse of discretion. (People v. Kopatz (2015) 61 Cal.4th 62, 85; People v. DeHoyos (2013) 57 Cal.4th 79, 131.) “Under this standard, a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Guerra (2006) 37 Cal.4th 1067, 1113, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390. 421, fn. 22; see People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) “‘[W]e review the ruling, not the court’s reasoning and, if the ruling was correct on any ground, we affirm.’” (People v. Zamudio, supra, 43 Cal.4th at p. 351, fn. 11; accord, People v. Brooks (2017) 3 Cal.5th 1, 39.)

C. No State Law Error

1. Legal Framework

Only relevant evidence is admissible. (Evid. Code, § 350.) “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness …, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)

Evidence of a person’s character or trait of character is generally inadmissible to prove that person’s conduct (Evid. Code, § 1101, subd. (a)), but it may be admissible when it is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Id., subd. (b).)

Even if evidence is relevant and otherwise admissible, pursuant to Evidence Code section 352 “[t]he court in its discretion may 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.” (Italics added.) However, as the California Supreme Court has explained, “‘“‘Prejudice’ as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption ‘“substantially outweigh”’ the probative value of relevant evidence, a section 352 objection should fail. [Citation.]

‘“The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’” [Citation.]’ [Citation.] [¶] The prejudice that section 352 ‘“is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.” [Citations.] “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation.]” [Citation.]’ [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” [Citation.]’” (People v. Scott (2011) 52 Cal.4th 452, 490–491; accord, People v. Tran (2011) 51 Cal.4th 1040, 1048.)

2. Analysis

Defendant maintains the prior contact evidence showing gang membership was only minimally relevant because it was cumulative and temporally stale; the evidence was unduly prejudicial because it directed the jury to make impermissible inferences about defendant’s character. We disagree.

In cases that do not involve gang enhancements, such as this, evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) However, evidence of gang membership is often relevant and admissible as to the charged offense. (Ibid.) “Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilty of the charged crime.” (Ibid.)

Here, the gang evidence was properly admitted. Evidence of gang membership explained why defendant ran at Joey, put a gun to her head, and ostensibly pulled the trigger; it tended to establish defendant had a specific intent to kill Joey. (See People v. Roldan (2005) 35 Cal.4th 646, 707 [“evidence of motive makes the crime understandable and renders the inferences regarding … intent more reasonable”]; People v. Williams (1997) 16 Cal.4th 153, 193–194 [evidence the defendant was a gang member, along with evidence describing colors, behaviors, and areas of influence admissible to show motive and identity where prosecutor proved that the victim, a non-gang member, was dressed as a gang member when murdered].) One prior law enforcement contact established defendant was a witness to his friend being stabbed by a Bulldog gang member, which tended to show an additional and personal resentment or conflict between defendant and the Bulldog gang that supplied even greater motive for defendant’s actions against Joey, who he mistakenly perceived as issuing a challenge or insult when she used the word “dog.” This evidence was highly relevant to defendant’s motive and establishing his intent toward Joey—it was not admitted as evidence of defendant’s character as prohibited by Evidence Code section 1101, subdivision (a). (See Evid. Code, § 1101, subds. (a)–(b).)

Defendant argues the evidence lacks relevance because it was stale—it neither demonstrated any current association with the WFN street gang nor established any willingness by defendant, past or present, to engage in violence on behalf of the gang. While staleness or remoteness of prior act evidence is a factor in determining the probative value, there is no bright-line rule what amount of time renders something too remote to be relevant. (See People v. Harris (1998) 60 Cal.App.4th 727, 739 [remoteness or staleness of prior conduct is appropriate factor in Evid. Code, § 352 analysis, but no bright-line rule as to what is too remote].) Here, the time between the prior contacts indicating gang membership and the underlying events was approximately four years, which is not a particularly extensive amount of time, and the prior contacts constituted especially strong and direct evidence of gang membership. The evidence was not limited to a circumstantial suggestion of gang membership or indicative of a passing or casual gang association. The prior contacts included, among other things, defendant self-identifying as a WFN to law enforcement on three occasions, observation of defendant’s stomach bearing a tattoo with the large letters “WFN,” a substantial amount of gang graffiti in defendant’s possession, and defendant witnessing a friend’s stabbing by a Bulldog rival. Additionally, there was no evidence indicating defendant had disassociated with WFN since the prior contacts had occurred. Further, defendant admitted on the stand he has been a WFN gang member since he was initiated at age 13, and he was a WFN member at the time of the underlying offenses. The strength of the gang membership evidence from the prior contacts coupled with defendant’s admission of gang membership and a lack of any evidence he had disassociated with the gang before the underlying events occurred significantly ameliorated the effects of any temporal staleness.

Moreover, the gang membership evidence did not constitute a large portion of the prosecution’s case. The evidence was offered through four officers whose testimony was brief and consumed little time. The trial court restricted the details about the prior encounters with law enforcement by precluding most of the context of those contacts, further diluting any prejudicial effects. For example, there was no mention defendant’s bedroom was searched pursuant to the terms of his probation or whether he was prosecuted or arrested during any of the prior encounters with law enforcement. These limitations mitigated much of the potential prejudice.

Defendant also argues the evidence’s cumulative nature amplified its prejudicial effect: for example, there was already evidence of defendant’s gang association based on his statements at the time of arrest referring to “WFN,” “mutts,” and “bullfrogs.” The prior contacts showing gang membership were not cumulative. First, defendant’s statements upon arrest of “WFN,” “mutts,” and “bullfrogs” did not constitute overwhelming evidence of defendant’s gang membership; it was not cumulative of defendant affirmatively self-identifying to officers he was a WFN member and his WFN gang tattoos, which were much more direct evidence of gang membership than the phrases defendant uttered during his arrest. Second, the prior contact establishing defendant witnessed his friend being stabbed by a Bulldog rival was the sole evidence of a personal motive for revenge against the Bulldogs and was highly relevant to his attempt to kill Joey. Third, as noted above, it took very little time to place this evidence before the jury—it was not a burden on the judicial system or the jurors, nor did it present any risk of confusion. (See People v. Williams (2009) 170 Cal.App.4th 587, 611 [gang membership evidence cumulative because it concerned issue not reasonably subject to dispute and took up unreasonable amount of time at trial].)

In sum, the evidence was relevant to defendant’s motive, and it was not significantly more prejudicial than probative. The trial court did not abuse its discretion in admitting this evidence.

D. No Due Process Violation

Although defendant argues the introduction of this evidence violated his due process rights and led to a fundamentally unfair trial, even assuming it was error to admit the evidence on state law grounds, we do not find this is one of those “rare and unusual occasions” where any error was of federal constitutional dimension. (People v. Albarran (2007) 149 Cal.App.4th 214, 232.) “‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.” [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.’ [Citation.] ‘The dispositive issue is … whether the trial court committed an error which rendered the trial “so ‘arbitrary and fundamentally unfair’ that it violated federal due process.” [Citation.]’” (Id. at pp. 229–230; accord, Jammal v. Van de Kamp (1991) 926 F.2d 918, 920.)

As discussed above, the gang membership evidence was highly relevant to motive, which was not undercut by any temporal remoteness. The evidence was not offered to prove a fact of which there was already overwhelming evidence or not reasonably subject to dispute. The presentation of the evidence did not take up an undue amount of time, and the evidence was carefully restricted to only four prior contacts that did not reveal whether defendant had committed or was charged with any crime as a result. Further, because it was relevant to motive, there were permissible inferences that could be drawn from the evidence other than impermissible inferences about defendant’s character. The admission of this evidence did not render the trial fundamentally unfair.

E. Any State Law Error Was Harmless

Finally, even assuming the court abused its discretion in admitting this evidence—which it did not—the error was not prejudicial. “It is … well settled that the erroneous admission or exclusion of evidence does not require reversal except where the error or errors caused a miscarriage of justice. [Citations.] ‘[A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that 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. Richardson (2008) 43 Cal.4th 959, 1001, quoting harmless error standard announced in Watson, supra, 46 Cal.2d at p. 836.) Applying Watson, we conclude that, as to all counts, there is no reasonable probability defendant would have obtained a more favorable result absent the admission of prior law enforcement contacts showing gang membership evidence. On the stand, defendant admitted he was a WFN gang member at the time of the underlying events, and that he had used the terms “mutts” and “bullfrogs” to refer to rival gang members. Expert testimony validated defendant as a gang member. Defendant made gang-related statements at the time of his arrest, including “WFN,” “bullfrogs,” and “mutts,” indicating his gang association. Based on the other gang membership evidence that was admitted, it is not reasonably probable that, had the prior gang association evidence not been admitted, a more favorable result to defendant would have been reached.

IV. Cumulative Error

Defendant contends that even if the errors alleged above are not in themselves reversible, they are so cumulatively. Not so. “In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error.” (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Having concluded only that there was potentially an error instructing the jury on consciousness of guilt and voluntary intoxication without modification, which was not prejudicial in itself, there is nothing to cumulate. As such, we necessarily reject defendant’s claim of cumulative error resulting in prejudice. (People v. Williams (2013) 56 Cal.4th 165, 201; People v. Sedillo, supra, at p. 1068.)

V. Sentencing Under Senate Bill No. 620

A. Background

Defendant maintains the case must be remanded for a new sentencing hearing under Senate Bill No. 620 so the court may consider whether to exercise its new discretion to strike or dismiss defendant’s firearm enhancements on each of the four convicted counts. He asserts Senate Bill No. 620 is retroactively applicable to his case because it was not yet final at the time the law went into effect.

The People agree that Senate Bill No. 620 applies retroactively: defendant was convicted, his sentence was enhanced under section 12022.5, subdivision (a), and section 12022.53, subdivisions (b) and (d), and his conviction is not yet final. The People dispute remand for resentencing is appropriate, however, because the record shows the trial court would not have exercised its discretion to lessen the sentence by striking the firearm enhancements. We conclude remand for resentencing is warranted.

B. Analysis

When it sentenced defendant, the trial court had no discretion to strike the firearm enhancements imposed under section 12022.5, subdivision (a), and section 12022.53, subdivisions (b) and (d). Effective January 1, 2018, Senate Bill No. 620 amended sections 12022.5 and 12022.53. Pursuant to those amendments, “[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.” (§§ 12022.5, subd. (c), 12022.53, subd. (h).) “The discretion conferred by the statute ‘applies to any resentencing that may occur pursuant to any other law’ (ibid.), and it applies retroactively to nonfinal judgments.” (People v. McDaniels (2018) 22 Cal.App.5th 420, 446, quoting section 12022.53, subdivision (h) & citing People v. Woods (2018) 19 Cal.App.5th 1080, 1090–1091.)

We accept the parties’ position that the statute applies retroactively to defendant’s case. (People v. Phung (2018) 25 Cal.App.5th 741, 763.) We agree with defendant that remand for a new sentencing hearing is appropriate. “[W]hen the record shows that the trial court proceeded with sentencing on the … assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the sentencing court,’ and a court that is unaware of its discretionary authority cannot exercise its informed discretion.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228; see People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 [remand required unless record reveals clear indication trial court would not have reduced the sentence even if it had the discretion to do so at the time of sentencing].) However, if “‘the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.’” (People v. Gamble (2008) 164 Cal.App.4th 891, 901.)

In this case, remand is proper because the record contains no clear indication the trial court would refuse to strike one or more of the firearm enhancements had it the opportunity to do so. The trial court found the aggravating factors prevailed and imposed the upper term of nine years on count 2 (§§ 664, 187), the upper term of nine years on count 3 (§ 245, subd. (b)), and the aggravated term for the firearm enhancement under section 12022.5, subdivision (a), as to count 3 (the sentence for count 3 & for the firearm enhancement under count 3 were stayed). The court also ordered the terms to run consecutively rather than concurrently. Although these sentencing choices suggest the court might not exercise its discretion to strike the firearm enhancements, it does not foreclose the possibility. Specifically, in discussing the sentences for the firearm enhancements under section 12022.53, subdivision (d), the court expressly indicated it had no choice but to impose two 25 years-to-life indeterminate terms, which accounted for well over half of the total sentence imposed. Remand, therefore, is not futile. (See People v. McDaniels, supra, 22 Cal.App.5th at p. 427 [“Firearm enhancements carry heavy terms and in many cases constitute much if not most of the total sentence. Given these high stakes, it seems to us that a reviewing court has all the more reason to allow the trial court to decide in the first instance whether these enhancements should be stricken, even when the reviewing court considers it reasonably probable that the sentence will not be modified on remand.”].)

We express no opinion as to how the trial court should exercise its discretion on remand, which is within the province of the trial court to exercise in the first instance.

VI. Clerical Error

The court imposed a sentence on count 3 as follows: “I will be imposing the base term of nine years plus … that’s the aggravated term of nine years plus the aggravated enhancement of ten years for 19 years on Count 3 stayed pursuant to [section] 654.” The abstract of judgment does not include the 10-year sentence imposed for the firearm enhancement under section 12022.5, subdivision (a), on count 3.

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186.) The clerical error in the abstract of judgment must be corrected to accurately reflect the sentence imposed as to count 3, despite that it was stayed under section 654. (People v. Mitchell, supra, at p. 185 [appellate courts that have properly assumed jurisdiction of cases may order correction of abstracts of judgment that did not accurately reflect the oral judgments of the sentencing court].)

DISPOSITION

The matter is remanded to allow the trial court to consider whether to exercise its discretion to strike or dismiss the firearm enhancements pursuant to Senate Bill No. 620 (see §§ 1385, 12022.5, subd. (c), 12022.53, subd. (h)) and, if necessary after the exercise of that discretion, resentence defendant as appropriate. The trial court is also instructed to prepare an amended abstract of judgment reflecting the 10-year sentence enhancement imposed under section 12022.5, subdivision (a), as to count 3, which was stayed under section 654. The amended abstract of judgment shall be forwarded to the Department of Corrections. In all other respects, the judgment is affirmed.

MEEHAN, J.

WE CONCUR:

LEVY, Acting P.J.

SMITH, J.

Filed 1/16/20 Richard v. Logomark, Inc. 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

TERRI RICHARD,

Plaintiff and Appellant,

v.

LOGOMARK, INC.,

Defendant and Respondent.

G056662

(Super. Ct. No. 30-2018-00982065)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Randall J. Sherman, Judge. Affirmed.

Protection Law Group, Heather Davis, Amir Nayebdadash and Priscilla Gamino for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Jason A. Weiss and Jason M. Guyser for Defendant and Respondent.

* * *

Plaintiff Terri Richard filed a lawsuit as a putative class action against her former employer, Logomark, Inc., primarily for alleged wage and hour violations. The trial court concluded Richard was bound by an arbitration agreement which included a class action waiver, dismissed the class claims without prejudice, and ordered the case stayed pending arbitration. Richard filed the instant appeal, arguing the case was appealable under the “death knell” doctrine and asserting that she never consented to arbitration, and any agreement was unconscionable.

We conclude the case is appealable, but find that Richard’s substantive claims are without merit. Although two separate documents pertained to arbitration, one which she signed and one she did not, there was substantial evidence that she received both of them. As to her claims of unconscionability, Richard neglected to offer any argument at all about why any arbitration agreement was procedurally unconscionable, and therefore we find no unconscionability as a whole. Accordingly, we affirm the trial court’s order.

I

FACTS

Logomark manufactures and sells promotional products. Richard was briefly employed at Logomark as a customer care representative from June 10, 2014 to September 23, 2014. On or about the date of her hire, Richard received and signed a document entitled “Agreement to Be Bound by Alternative Dispute Resolution Policy” (the Agreement). In essence, this document stated that she consented to arbitrate in the event of any employment disputes between herself and Logomark. The Agreement expressly includes wage and hour claims.

Logomark’s Director of Human Resources, Soledad Margarita Arciniega, was present when she signed the Agreement. Arciniega’s declaration states that in addition to the two-page Agreement, Richard was also provided with the three-page “Alternative Dispute Resolution Policy” (the Policy) which expands upon the Agreement and explains arbitration in somewhat plainer language. Both the Policy and the Agreement include class action waivers.

On the date of her hire, Richard also signed an Employee Acknowledgement (the Checklist), which includes a list of documents that she received and categorized them as either to sign and return, or maintain for the employee’s records. The sign and return category included a document entitled “Alternative Dispute Resolution Acknowledgment,” which was apparently meant to refer to the Agreement. The list of documents to maintain for the employee’s records included the Policy, under the same name.

In short: Richard signed the Agreement and the Checklist. She did not sign the Policy, which she claims she did not receive, although she never submitted a declaration under oath so stating.

Some three years after Richard ended her brief tenure at Logomark, she filed the instant action as a putative class action, alleging Logomark violated: 1) Labor Code sections 510 and 1198 by failing to pay overtime; 2) Labor Code sections 226.7 and 512(a) by failing to provide meal periods; 3) Labor Code section 226.7 by failing to provide rest periods; 4) Labor Code sections 1194, 1197 and 1197.1 by failing to pay minimum wages; 5) Labor Code section 2802 by failing to reimburse expenses, and (6) Business and Professions Code section 17200 by committing the enumerated Labor Code violations.

Logomark filed a motion to compel arbitration. In sum, she admitted signing the Agreement but denied receiving the Policy. Among other things, she contended the Agreement, when considered alone, was unconscionable. After briefing and argument, the trial court granted the motion to compel arbitration, dismissed the class claims without prejudice, and ordered the matter stayed pending completion of arbitration. The court stated that “there exists a valid agreement to arbitrate the claims asserted by plaintiff and that no grounds exist to bar enforcement of the agreement. [Code of Civil Procedure section] 1281.2. Plaintiff’s claims of unconscionability are unsupported by the language of the arbitration agreement and the law, and defendants did not waive their right to arbitrate. Plaintiff has failed to meet her burden of proving the facts of any defense to enforceability.”

Richard now appeals.

II

DISCUSSION

Appealable Order

Logomark argues, both in its respondents’ brief and in a motion to dismiss the appeal, that the order granting its motion to compel is not appealable. Richard, as appellant, bears the burden of establishing appealability. (See Cal. Rules of Court, rule 8.204(a)(2)(B).) She contends the order is appealable under the death knell doctrine.

“The death knell doctrine is a ‘“tightly defined and narrow”’exception to the one-final-judgment rule, which generally precludes piecemeal litigation through appeals from orders that dispose of less than an entire action. [Citation.] Under this exception, an order is appealable when ‘it effectively terminates the entire action as to [a] class, in legal effect being “tantamount to a dismissal of the action as to all members of the class other than plaintiff.”’ [Citations.] Thus, an order determining that a plaintiff cannot ‘maintain his [or her] claims as a class action but [can] seek individual relief’ is immediately appealable.” (Williams v. Impax Laboratories, Inc. (2019) 41 Cal.App.5th 1060, 1066-1067.)

“To qualify as appealable under the death knell doctrine, an order must ‘(1) amount[] to a de facto final judgment for absent plaintiffs, under circumstances where (2) the persistence of viable but perhaps de minimis individual plaintiff claims creates a risk no formal final judgment will ever be entered.’ [Citation.] Among the orders that generally qualify are ‘[a] trial court’s decision to sustain a demurrer to class allegations without leave to amend, deny a motion for class certification, or grant a motion to decertify a class.’ [Citation.] What ultimately matters, however, is ‘not the form of the order or judgment but its impact.’” (Williams v. Impax Laboratories, Inc., supra, 41 Cal.App.5th at p. 1067; see In re Baycol Cases I & II (2011) 51 Cal.4th 751, 760.)

We find the requirements to be satisfied here. The trial court’s decision to send Richard’s individual claims to arbitration effectively terminates the class claims forever, and there was uncontroverted evidence that the individual claims are too small to pursue separately. Logomark argues that for the death knell doctrine to apply, the court must order the class claims terminated with prejudice.

In support of that point, Logomark cites Marenco v. DirecTV LLC (2015) 233 Cal.App.4th 1409, apparently the only published decision addressing this issue in the context of a motion to compel arbitration. That case stated: “[T]his case does not fall within the death knell doctrine’s procedural requirements as discussed in Sandquist v. Lebo Automotive, Inc. (2014) 228 Cal.App.4th 65, 72-75 . . . , review granted November 12, 2014, S220812. The doctrine applies only if there is a final order dismissing the class claims with prejudice. In this case, our record does not indicate the status of the class claims, which were not mentioned in the order granting the motion to compel arbitration; presumably, they were stayed.” (Marenco, at pp. 1415-1416.) The comment regarding the requirement of a dismissal with prejudice does not include a citation, and the only case citation refers to a case already pending before the California Supreme Court. To the extent Marenco is good law on this point, we choose not to follow it.

Logomark also refers to cases regarding class action certifications denied (Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556, 586), and demurrers sustained (Farwell v. Sunset Mesa Property Owners Assn., Inc. (2008) 163 Cal.App.4th

1545, 1550-1551) without prejudice, but we find those factual situations fundamentally different. The distinction between a motion to compel arbitration and a demurrer sustained with leave to amend are, hopefully, obvious. And while a motion to certify a class can be renewed after, for example, additional discovery on the issue, there is no such opportunity after a case has been sent to arbitration.

Thus, we find this case meets the two requirements for the death knell doctrine to apply. It “(1) amounts to a de facto final judgment for absent plaintiffs, under circumstances where (2) the persistence of viable but perhaps de minimis individual plaintiff claims creates a risk no formal final judgment will ever be entered.” (In re Baycol Cases I & II, supra, 51 Cal.4th at p. 759.) Logomark’s motion to dismiss the appeal, accordingly, is denied.

Standard of Review

“We use general principles of California contract law to determine the enforceability of an arbitration agreement.” (Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1153.) “Where the trial court’s decision on arbitrability is based upon resolution of disputed facts,” the appellate court “review[s] the decision for substantial evidence.” (NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 71.) “‘[I]f the court’s denial rests solely on a decision of law, then a de novo standard of review is employed.’” (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 60.) When there is no conflicting evidence regarding the meaning of the agreement, its interpretation is a question of law. (Ibid.) The parties appear to agree that whether Richard consented to arbitration is a disputed question of fact that we review for substantial evidence, while whether the agreement was enforceable is a question of law reviewed under the de novo standard.

Consent to Arbitration

Code of Civil Procedure section 1281.2 requires a court to order arbitration “if it determines that an agreement to arbitrate . . . exists . . . .” California has a strong public policy in favor of arbitration as an expeditious and cost-effective way of resolving disputes. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.) Even so, parties can only be compelled to arbitrate when they have agreed to do so. (Westra v. Marcus & Millichap Real Estate Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 763.)

“‘“[W]hen presented with a petition to compel arbitration the trial court’s first task is to determine whether the parties have in fact agreed to arbitrate the dispute. [¶] . . .” [Citation.]’ [Citations.] ‘A party seeking to compel arbitration has the burden of proving the existence of a valid agreement to arbitrate. [Citations.] Once that burden is satisfied, the party opposing arbitration must prove by a preponderance of the evidence any defense to the petition.’” (Avery v. Integrated Healthcare Holdings, Inc., supra, 218 Cal.App.4th at p. 59; see Lacayo v. Catalina Restaurant Group Inc. (2019) 38 Cal.App.5th 244, 257.)

On appeal, as mentioned above, we review this issue to determine whether substantial evidence exists to support the trial court’s determination that an agreement to arbitrate existed between the parties. “We view the evidence most favorably to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. [Citation.] Substantial evidence is evidence of ponderable legal significance, reasonable, credible and of solid value. [Citation.] However, ‘[s]ubstantial evidence . . . is not synonymous with “any” evidence.’ [Citation.] Instead, the evidence must be ‘“substantial” proof of the essentials which the law requires.’” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.) If the record contains such evidence, we will affirm the trial court’s decision even if conflicting evidence exists. (Ibid.)

Richard’s essential point here is that because there were two separate documents (the Policy and the Agreement), and “nothing in the record to establish” that Richard accepted the unsigned Policy, she never consented to arbitration. She argues that because Logomark did not provide the Policy when it produced her personnel file, the two documents contain contrary language, and the Policy was not authenticated in Logomark’s moving papers, there was no consent to arbitration.

These arguments are unavailing. There is no reason why any employer would put an unsigned portion of its handbook into every employee’s file, and the Policy was, in addition to being provided separately, part of the handbook. In any event, Arciniega’s declaration asserts both that the Policy was included in her file and that she provided it to counsel on two occasions.

As to the “contrary language” the only such language Richard points to is that the Agreement refers to the Policy “attached hereto” when the Policy was, in fact, not “attached” to the Agreement. While this is a discrepancy, it is such a minor and nonsubstantive one that we do not find it created a contradiction between the two documents. With respect to Richard’s claim that the Policy was not authenticated, this is untrue. Arciniega’s declaration authenticated the handbook, which included the Policy.

Most importantly, Richard ignores that she also signed the Checklist, which included two arbitration-related documents: the Alternative Dispute Resolution Acknowledgment and the Alternative Dispute Resolution Policy. Richard makes much of the fact that the Alternative Dispute Resolution Acknowledgment had a different name than the signed Agreement (the “Agreement to Be Bound by Alternative Dispute Resolution Policy), but this is much ado about nothing. Richard signed the Agreement – the only question is whether she received the Policy, and the Checklist provides substantial evidence that she did. Further, Richard has never submitted evidence, including a declaration, that she did not receive the Policy.

Taken together, we find substantial evidence that Richard consented to arbitration.

Unconscionability

Civil Code section 1670.5, subdivision (a), codifies unconscionability as a reason for refusing a contract’s enforcement. It states: “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.” (Civ. Code, § 1670.5, subd. (a).) This provision applies to arbitration agreements. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114), abrogated in part on another ground in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 340.)

“‘[U]nconscionability has both a “procedural” and a “substantive” element,’ the former focusing on ‘“oppression”’ or ‘“surprise”’ due to unequal bargaining power, the latter on ‘“overly harsh”’ or ‘“one-sided”’ results. [Citation.] ‘The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.’ [Citation.] But they need not be present in the same degree. . . . [T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 114.) We discuss each of these in turn.

“‘“Procedural unconscionability” concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. [Citation.] It focuses on factors of oppression and surprise.’” (Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1319.)

Richard acknowledges that “both [procedural and substantive unconscionability] must be present” to invalidate an arbitration agreement, but neither of her briefs provide any argument about procedural unconscionability other than acknowledging the requirement exists. “An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106; see City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 679, fn.8.) Accordingly, without any argument supporting procedural unconscionability, we cannot find the Policy and/or the Agreement as a whole was unconscionable.

III

DISPOSITION

The order is affirmed. Logomark is entitled to its costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

IKOLA, J.

GOETHALS, J.

Filed 1/16/20 Hanson v. Murrah CA2/5

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 FIVE

MARYZA ALEXANDRA HANSON,

Plaintiff and Appellant,

v.

JOHN THOMAS MURRAH,

Defendant and Respondent. B292327

(Los Angeles County

Super. Ct. No. BC600290)

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles F. Palmer, Judge. Affirmed.

Wilshire Law Firm, Bobby Saadian and Jonathan C. Teller for Plaintiff and Appellant.

Law Offices of Cleidin Z. Atanous and Cleidin Z. Atanous; Raffalow, Bretoi & Adams and Emily K. Rockwell for Defendant and Respondent.

__________________________

Plaintiff and appellant Maryza Hanson appeals from a judgment following a jury trial of her personal injury action. The jury found both plaintiff and defendant negligent, and awarded plaintiff $39,000 in damages. Plaintiff moved for a new trial or additur, and argues that both defense counsel and jurors had engaged in misconduct. She further argues that insufficient evidence supported the verdict, and the damages awarded were inadequate. The trial court denied the motion, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Accident
2.
On the morning of October 31, 2014, plaintiff, age 20, was riding her bike on a sidewalk as she headed toward a Metro station. Defendant was driving his car through a Metro parking lot and stopped at a red light at an intersection as he exited the lot. As he attempted to turn right onto Campo De Cahuenga Boulevard, plaintiff rode her bike through the crosswalk at the intersection. Defendant struck plaintiff with his car as he drove through the crosswalk. She injured her left knee in the collision.

3. The Complaint
4.
On November 6, 2015, plaintiff filed a complaint against defendant alleging he was negligent in failing to yield the right of way to plaintiff. Defendant filed an answer alleging plaintiff’s negligence was the sole cause of the accident.

5. Trial
6.
At trial, defendant testified that he never saw plaintiff prior to the collision. A cement barrier limited his ability to see the sidewalk to his right. He had stopped at a red light at the intersection and looked both ways before slowly entering the intersection. He collided with plaintiff as he attempted to turn right.

A pedestrian who had witnessed the accident testified that he had been walking on the sidewalk in the same direction as plaintiff when she passed him on her bike. The pedestrian could see defendant’s vehicle stopped at the intersection ahead. Plaintiff did not slow down or look to either side before entering the crosswalk. Defendant’s vehicle moved a few feet forward as plaintiff entered the crosswalk and struck the side of plaintiff’s bicycle, causing her to fall to the ground.

Plaintiff testified that she had no recollection of braking as she rode down the hill at 8 to 15 miles per hour approaching the intersection. She saw defendant’s car stopped at the intersection and believed it would turn right at some point. When she rode into the crosswalk, defendant’s vehicle hit her left knee and she also fell onto her knee when she landed on the ground.

Plaintiff was taken to the emergency room, where she was given an immobilizer and crutches. She used these for approximately two weeks, and participated in physical therapy. One year later, Dr. Babak Samimi performed surgery on her left knee. Although the surgery was successful, plaintiff claimed her knee still hurt, and she limited her physical activities out of fear.

Dr. Samimi testified he performed surgery on plaintiff to repair her anterior cruciate ligament (ACL). After the surgery, she regained her range of motion and the knee returned to normal stability and function. Dr. Samimi opined that plaintiff would have a higher likelihood of developing arthritis in 20 to 30 years. Treating any arthritis would involve physical therapy, bracing, and injections. If plaintiff developed arthritis, she would need physical therapy and might need another surgery.

Dr. Rajan Mahendra Patel, an orthopedic surgeon, testified as an expert for plaintiff. He opined that the arthroscopy was successful in repairing her torn ACL. After the surgery, she participated in 6 to 12 weeks of physical therapy. The surgery and therapy improved her instability and pain, and her incisions healed well. On cross-examination, he stated that the ACL had been sprained. Patel testified plaintiff may need to undergo another surgery.

Dr. Irwin Bliss testified as an orthopedic surgeon for the defense. He opined that the surgery performed was unnecessary because there was no indication plaintiff’s knee was unstable or that her ACL was injured prior to Dr. Samimi’s evaluation.

Dr. Stephen Rothman, a radiologist, also testified for the defense. He opined that plaintiff’s MRI showed no abnormality or evidence of laxity in her ACL.

Dr. Henricus Jansen testified for the defense as an expert on accident reconstruction. Using measurements of the accident scene, he employed computer software to recreate the collision. Jansen estimated that plaintiff was traveling at 12 miles per hour and defendant’s speed at under 5 miles per hour at impact. He concluded that had defendant looked right the entire time, he still would not have been able to observe plaintiff until 1.5 seconds before the collision, while plaintiff would have been able to observe defendant’s vehicle for the four to five seconds before impact.

In closing, plaintiff’s counsel asked the jury for approximately $90,000 in past medical expenses, up to $216,100 in future medical damages, and half a million dollars for future pain and suffering. The jury found both parties negligent and that their negligence was a substantial factor in causing the accident. The jury found plaintiff was half at fault, and awarded her $60,000 for past economic damages and $18,000 for past noneconomic damages. Judgment was entered on June 27, 2018 in plaintiff’s favor in the amount of $39,000. After awarding costs to both parties, the judgment was reduced to $7,058.93.

7. Motion for New Trial
8.
Plaintiff moved for a new trial or in the alternative additur based on defense and juror misconduct. She also argued no evidence supported the finding she was negligent and all the evidence supported an award for future medical treatment.

The trial court denied the motion and addressed plaintiff’s principal asserted errors individually. As to the alleged misconduct by defense counsel in eliciting inadmissible hearsay from an expert, the court found that “both counsel” elicited hearsay from their experts “at times and that not all objections to such testimony w[ere] meritorious.” As to the claim that defense counsel introduced surprise testimony at trial, the court concluded that “[w]ith respect to much of the testimony of which [plaintiff] complains, her counsel objected at the time and the objection was sustained or the witness responded and there was a motion to strike which was ultimately granted and the jury was admonished to disregard the testimony . . . .”

On the issue of jury misconduct, the court struck both of plaintiff’s supporting declarations on the ground that the declarant jurors did not state that their allegations were “based on personal knowledge . . . .” The court concluded that “[i]n light of the fact that [plaintiff] has submitted no admissible evidence of juror misconduct, it cannot serve as ground for ordering a new trial.”

Lastly, plaintiff argued that insufficient evidence supported the jury’s decision not to award future medical damages because even defendant’s expert agreed plaintiff needed future medical care. The court concluded that plaintiff’s “assertion that . . . Dr. [Bliss] agreed with [her] orthopedic experts that [she] would require future medical treatments is substantially undermined by the clearly speculative nature of Dr. [Bliss’s] actual testimony that pain in her knee ‘could be’ a result of the mesh and she ‘may’ need to remove the mesh, that she ‘may’ need future surgery to remove the mesh ‘if it turns out that that’s what’s causing pain.’ This is not only far short of testimony that surgery or other medical treatment would be ‘required,’ it is far short of the requirement in CACI [No.] 3905A that to recover for future pain and suffering plaintiff must prove that she is reasonably certain to suffer that harm.’ ”

On these grounds, the court denied the new trial motion. Plaintiff appealed.

DISCUSSION

Plaintiff contends she is entitled to a new trial because (1) insufficient evidence supports the judgment, (2) the jury awarded inadequate damages, (3) defense counsel committed misconduct, and (4) jurors engaged in misconduct. We conclude the court did not abuse its discretion in denying the new trial motion.

1. Standard of Review
2.
We review the trial court’s denial of a motion for new trial and request for additur for abuse of discretion. (See Haskins v. Holmes (1967) 252 Cal.App.2d 580, 584.) “ ‘In determining whether there has been an abuse of discretion, the facts on the issue of damage most favorable to the respondent must be considered.’ ” (Miller v. San Diego Gas & Electric Co. (1963) 212 Cal.App.2d 555, 559.) “A new trial shall not be granted upon the ground of . . . inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.)

3. Inadequacy of Plaintiff’s Brief
4.
Plaintiff first argues the evidence did not support a finding of comparative fault, because “[a]ll the evidence showed defendant was solely at fault for this collision.” She also contends that insufficient evidence supported the jury’s decision not to award damages for future damages because “there was overwhelming evidence by all of the witnesses that plaintiff . . . will continue to suffer in the future with the necessity of future medical treatment costs.” Defendant argues that plaintiff has forfeited her claim for insufficiency of the evidence by only summarizing the evidence in her favor. We agree with defendant.

When an appellant argues insufficiency of the evidence, she is “ ‘ “required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.” ’ [Citation.]” (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 749.) Here, plaintiff has not set forth all the material evidence, but only evidence in her favor. She has thus waived her argument that insufficiency of the evidence supported the jury’s verdict.

Even if we were to reach the merits of plaintiff’s arguments on insufficiency of the evidence, we would conclude that the trial court did not err in rejecting them. As to plaintiff’s argument that there was no evidence she was negligent, a reasonable fact finder could have concluded plaintiff was negligent in not slowing down or trying to get the driver’s attention as she approached the crosswalk.

As to the jury’s decision not to award future damages, the record shows that plaintiff’s own experts were equivocal as to whether plaintiff needed future medical treatment: Dr. Patel testified he did not know whether she would need another surgery and Dr. Samimi opined that plaintiff might develop arthritis in decades to come.

5. Alleged Attorney Misconduct
6.
Plaintiff argues defense counsel committed misconduct by (1) eliciting inadmissible hearsay, (2) allowing an expert to testify to new opinions, (3) presenting an expert whose opinions lacked foundation, (4) questioning a witness about insurance and billing rates, and (5) misrepresenting trial testimony in closing argument. Whether characterized as attorney misconduct or an erroneous evidentiary ruling, we conclude that plaintiff was not prejudiced by any error and the trial court, therefore, did not err in denying a new trial.

a. Inadmissible Hearsay
b.
Plaintiff argues that defense counsel solicited inadmissible hearsay from Dr. Bliss regarding other doctor’s reports and opinions, and this testimony caused the jury to award “a significantly lower amount.” In support of this argument, plaintiff cites to several excerpts from defense counsel’s examination of Dr. Bliss. We address each in turn.

In one excerpt, plaintiff’s counsel did not raise an objection to the testimony that she now argues was inadmissible hearsay. She has therefore, waived this argument. (See K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 948–949 [a party must raise a contemporaneous objection at trial to present the issue for appellate review].)

In another excerpt, the court sustained plaintiff’s objection. The court later instructed the jury, “If I sustained an objection, you must ignore the question. . . . If the witness has already answered, you must ignore the answer.” In another excerpt, the court sua sponte struck the subject testimony, and then instructed the jury to disregard it. “Ordinarily, a curative instruction to disregard improper testimony is sufficient to protect a defendant from the injury of such testimony, and, ordinarily, we presume a jury is capable of following such an instruction. [Citation.]” (People v. Navarrete (2010) 181 Cal.App.4th 828, 834.) Here, plaintiff does not explain how the court’s rulings were insufficient and caused her prejudice. She has not overcome the presumption that the jury followed the court’s curative instruction.

Lastly, plaintiff objects to Dr. Bliss’s testimony that a radiologist had “found bursitis” in “different ligaments” than the ACL, and that another doctor had reported swelling. The court overruled plaintiff’s objections to this testimony. Even if the court erred in doing so, plaintiff does not explain how she was prejudiced by this hearsay. Plaintiff’s experts opined that plaintiff had torn her ACL. Dr. Bliss’s opinion was that she had not torn her ACL. He opined that a torn ACL would cause swelling and plaintiff’s records showed no evidence of significant swelling. Dr. Bliss’s testimony that other doctors found swelling undercut his opinion and supported that of plaintiff’s experts. Accordingly, the trial court did not abuse its discretion in concluding any error was not prejudicial.

c. Alleged Surprise Testimony by Experts
d.
Plaintiff argues that she was prejudiced by defense counsel’s surprise introduction of “new opinions and new reports” by Dr. Bliss at trial. She contends that the late disclosure of this evidence prevented her counsel from questioning her experts on this evidence or preparing to cross-examine Dr. Bliss on these matters. Plaintiff also contends that Jansen testified to new opinions that were never disclosed at deposition, and this “severely prejudiced” her.

When Dr. Bliss was on the witness stand, he reviewed “typed up summaries” of his records. Upon plaintiff’s counsel’s request, Dr. Bliss shared these notes which consisted of a copy of a four-page report dated April 30, 2018 and a five-page report dated May 7, 2018. Plaintiff’s counsel said he had never received copies of these reports. The court responded, “Object to what you wish to object to . . . [and] I’ll rule on the objections.” Dr. Bliss proceeded to testify, and plaintiff’s counsel did not raise any objections based on unexpected testimony.

Plaintiff now argues that Dr. Bliss’s use of these reports at trial violated defendant’s duty of pretrial discovery for expert witnesses. (See Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919 [a party must disclose “at his expert’s deposition, if the expert is asked, the substance of the facts and the opinions by which the expert will testify to at trial”].) Even if plaintiff had not waived this argument through her failure to object below, she has not explained how she was prejudiced by this alleged improper testimony.

Plaintiff does not describe the content of Dr. Bliss’s “new opinions and new reports” to which she is objecting. Further, the record shows only that Dr. Bliss used these two reports to refresh his recollection, not that he testified to their contents or that Dr. Bliss testified to opinions that had not previously been disclosed. Nor does plaintiff explain how her experts would have testified differently in response to the new reports or how her counsel would have changed his cross-examination of Dr. Bliss.

With respect to Jansen, plaintiff makes the general argument this expert improperly testified to “new documents and opinions.” Plaintiff’s citations to the record do not support this contention. Plaintiff also argues that Jansen’s testimony that “stopping distances contributed to the collision” was a new opinion that was never disclosed at deposition. Again, plaintiff cites to only four lines in the record which do not establish that this testimony was newly disclosed. Assuming it was, plaintiff has again failed to explain how this prejudiced her: she does not argue what she would have done differently at trial had she received advance notice of this opinion. She has not shown prejudice.

e. Jansen’s Testimony About Plaintiff’s Speed
f.
Plaintiff argues Jansen’s testimony about plaintiff’s speed prior to the collision lacked foundation, and warranted a new trial. When plaintiff moved to exclude the entirety of Jansen’s testimony, the trial court granted the motion only as to testimony about “human factors” but allowed Jansen to testify about “accident reconstruction . . . .” We find no abuse of discretion.

At trial, Jansen testified he used photos of the accident site in conjunction with testimony about how the accident occurred to recreate the accident and calculate the relative speeds of defendant’s car and plaintiff’s bike prior to collision. Based on plaintiff’s testimony that she was traveling between 8 and 15 miles per hour and Jansen’s calculation as to how fast a bicyclist would coast down the hill without brakes—20 miles per hour—Jansen estimated plaintiff was traveling at 12 miles per hour at the time of the accident.

Jansen ran software to render the accident with plaintiff’s speed at 12 miles an hour. Assuming defendant started to move 1.5 seconds before impact and plaintiff was traveling at 12 miles per hour, Jansen opined she could not stop in time to avoid the collision. However, had plaintiff been traveling at only six miles per hour, she could have stopped 10 feet short of the collision. On cross-examination, Jansen testified he had never examined plaintiff’s bicycle, and had not ridden a bicycle down the sidewalk “like” plaintiff.

Plaintiff argues that Jansen’s opinion about her speed lacked foundation because he (1) had not inspected her bicycle, (2) had not “used a bicycle down the sidewalk like plaintiff,” and (3) did not “attempt to use an alternative speed of plaintiff in his software system to evaluate plaintiff’s speed.” Plaintiff does not support this argument with any citation to authority.

“ ‘The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation] . . . .’ [Citation.]” (David v. Hernandez (2017) 13 Cal.App.5th 692, 698.) In the trial court’s preliminary determination as to whether an expert opinion is admissible, “the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies. Rather, it conducts a ‘circumscribed inquiry’ to ‘determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert’s general theory or technique is valid.’ [Citation.] The goal of trial court gatekeeping is simply to exclude ‘clearly invalid and unreliable’ expert opinion. [Citation.]” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 772.)

Here, plaintiff has not shown that the court abused its discretion in allowing Jansen to estimate plaintiff’s speed prior to the collision. First, Jansen’s testimony was based on plaintiff’s own estimate of her speed. Second, plaintiff has not explained why it was unreasonable for Jansen to calculate the speed of a vehicle based on computer modeling and data from the accident scene instead of physically recreating the accident. Lastly, it is unclear how using an unspecified “alternative” speed in Jansen’s accident reconstruction software would have provided a foundation for his opinion that she was traveling at 12 miles per hour.

g. References to Insurance and Medical Bills
h.
Plaintiff argues defense counsel improperly referred to insurance when questioning experts Dr. Bliss and Dr. Samimi. According to plaintiff, Dr. Bliss and Dr. Samimi’s testimony about insurance violated the collateral source rule and “affected the jury’s verdict of damages.” Plaintiff has not shown that the collateral source rule was violated.

With respect to Dr. Samimi’s testimony, plaintiff argues defense counsel should not have asked him whether Medicare “reimburse[s] for PRP injections.” Dr. Samimi answered in the negative. Plaintiff now argues this testimony “violates the collateral source rule,” citing to Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266. That case summarizes the collateral source rule as follows: “ ‘ “if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.” ’ [Citation.]” (Id. at p. 1273.) Here, Dr. Samimi testified that Medicare did not reimburse plaintiff for PRP injections. Therefore, plaintiff has not shown that this testimony violated the collateral source rule.

As for Dr. Bliss, plaintiff cites to the following statements in the record: Dr. Bliss’s testimony that (1) he was familiar with “billing practices in Southern California area,” (2) he knows “what the insurance companies pay,” (3) Dr. Samimi’s surgery fee was excessive and insurance would only pay for approximately five percent of this bill, (4) “no insurance company[]” would pay for Dr. Samimi’s charge for a report, and (5) “no insurance company or Medicare will pay for” platelet rich plasma. Again, testimony that insurance companies would not pay for a health provider’s charges does not violate the collateral source rule’s prohibition on reducing a plaintiff’s damages by payments received by insurance.

Further, the experts’ testimony on reimbursement rates was relevant to the actual value of the services rendered. (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 561–562.) Lastly, the trial court instructed the jury that they must not consider whether any party has insurance as the issue was “totally irrelevant.” We presume the jury followed those instructions. (People v. Navarrete, supra, 181 Cal.App.4th at pp. 828, 834.)

i. Defense Counsel’s Closing Argument
j.
Plaintiff argues defense counsel engaged in misconduct by misrepresenting trial testimony during closing argument, and that a new trial should have been granted on this ground. However, plaintiff never objected to these claimed misrepresentations during closing argument. Plaintiff argues generally in her reply that any failure to object at trial was excused because any objection would have proved futile and admonitions would not have cured the harm. This general argument—encompassing the entire trial—is insufficient to show an exception to the general rule of forfeiture.

Further, attorneys have wide latitude in closing argument (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795), and the jury was properly instructed that counsel’s argument was not evidence (People v. Hill (1998) 17 Cal.4th 800, 845). Plaintiff also does not include record citations to support her argument that defendant’s closing misrepresented earlier testimony, but only cites to the counsel’s argument. She has not met her burden on appeal of establishing error. (See Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)

7. Jury Misconduct and Voir Dire
8.
Plaintiff argues the trial court erred in denying a new trial based on jury misconduct. In support of this argument, she cites to evidence in the two juror declarations stricken by the trial court. However, she does not argue the trial court erred in striking the declarations, and therefore, has not shown the trial court erred in concluding she “submitted no admissible evidence of juror misconduct.”

Plaintiff also contends that the trial court erred in denying her request for additional time to conduct voir dire but does not explain why the court’s limitation was “unreasonable or arbitrary.” (See Code Civ. Proc., § 222.5, subd. (b)(2) [“The trial judge shall not impose specific unreasonable or arbitrary time limits or establish an inflexible time limit policy for voir dire.”].) Plaintiff also does not explain what she would have done differently with more time. Her argument that she was “not able to fully find out all biases the jury had” is insufficient to show prejudice, especially in light of the trial court’s order striking the juror declarations.

DISPOSITION

The judgment is affirmed. Defendant is awarded his costs on appeal.

RUBIN, P. J.

WE CONCUR:

MOOR, J.

KIM, J.

Filed 1/16/20 P. v. Durbin 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.

DUSTIN DWAYNE DURBIN,

Defendant and Appellant.

E073600

(Super.Ct.No. RIF1705169)

OPINION

APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed.

Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

On December 13, 2017, a complaint charged defendant and appellant Dustin Dwayne Durbin with corporal injury resulting in a traumatic injury on a spouse or former spouse under Penal Code section 273.5, subdivision (a) (count 1); and assault with force likely to produce great bodily injury under Penal Code section 245, subdivision (a) (count 2). The complaint also alleged four prior offenses under Penal Code section 667.5, subdivision (b), and a prior strike conviction.

On February 27, 2018, defendant either pled guilty or no contest to corporal injury of a spouse resulting in a traumatic injury under Penal Code section 273.5, subdivision (a) (count 1). Defendant also admitted the strike prior. On March 29, 2018, the trial court orally sentenced defendant to six years in state prison as follows: the midterm of three years for count 1, doubled due to the strike prior. The court then dismissed the remaining charges. The original abstract of judgment and minute order correctly noted that defendant was sentenced to six years. However, both documents incorrectly described that defendant was sentenced to the low term instead of the midterm.

On July 5, 2018, without the presence of a court reporter, defendant, defense counsel, or prosecutor, the trial court vacated the original sentence pursuant to a letter from the California Department of Rehabilitation and Correction. The court then sentenced defendant to the same six years in state prison but indicated that defendant was sentenced to the midterm. In all other aspects, the sentence remained the same. On July 19, 2019, an amended abstract of judgment was filed reflecting the change of the sentence from low term to midterm.

One year later, on July 2, 2019, defendant filed a “motion for transcripts of prior proceedings in their inclusive language and minutes of proceedings and copy of court records.” (All caps omitted.) In support of the motion, defendant filed a declaration wherein he declared that he intended “to seek relief in a higher court by means of a writ” because he believed that the ruling was erroneous, or the court abused its discretion. Defendant also stated that “in order to properly prepare a petition for review” it was necessary “that the transcripts of the prior proceedings in their inclusive language be prepared as well as all court record and minutes pertinent to the above stated case.” On July 2, the trial court denied defendant’s motion.

On August 30, 2019, defendant filed a notice of appeal of the “denial of transcripts.” (All caps omitted.)

DISCUSSION

After defendant appealed, and 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 undertake a review of the entire record. Pursuant to Anders, counsel identified the following issue to assist the court in its search of the record for error: “Did the trial court err in denying defendant’s motion for transcripts? (See generally, Mayer v. Chicago (1971) 404 U.S. 189; People v. Reese (2017) 2 Cal.5th 600.)”

We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, considered the issues listed by appellate counsel, and find no arguable issue for reversal on appeal.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

SLOUGH

J.

FIELDS

J.

Filed 1/16/20 ATG Electronics, Inc. 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

ATG ELECTRONICS, INC.,

Plaintiff and Appellant;

MORTEN & FAIRCHILD, PC, et al.,

Appellants,

v.

THE MULCAHY LAW FIRM,

Defendant and Respondent.

G056931

(Super. Ct. No. 30-2017-00906469)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Thomas A. Delaney, Judge. Affirmed.

Morten & Fairchild, Aaron B. Fairchild and Robert W. Miller for Plaintiff and Appellants.

The Mulcahy Law Firm, James M. Mulcahy, Kevin A. Adams and Filemon Carrillo, Jr., for Defendant and Respondent.

* * *

This is an appeal by plaintiff and appellants, ATG Electronics, Inc., and their attorneys, Morten & Fairchild, PC, et al. (ATG), from a judgment following an arbitrator’s decision awarding $50,000 in sanctions to defendant and respondent the Mulcahy Law Firm (Mulcahy or the law firm) pursuant to Code of Civil Procedure section 128.5. ATG does not contest the remainder of the award, but argues that the $50,000 in sanctions was improper because the arbitrator exceeded his powers in numerous respects. Mulcahy counters that the arbitrator did not exceed his authority and that any legal errors are unreviewable by this court. We conclude that the arbitrator did not exceed his powers, and that any errors were ordinary legal errors this court cannot review following an arbitration proceeding. Accordingly, we affirm the judgment.

I

FACTS

In February 2015, ATG retained Mulcahy to represent it and certain individuals in a litigation matter. The parties entered into an engagement agreement outlining the scope of services. This agreement included an arbitration clause, which stated that any dispute over attorney fees would be arbitrated under the relevant provisions set forth in the Business and Professions Code, while any other disputes would be arbitrated under the Code of Civil Procedure. In January 2017, Mulcahy filed an arbitration demand with Judicial Arbitration and Mediation Service (JAMS) (the claim). The claim alleged Mulcahy had spent 440 hours on ATG’s matter and that ATG had paid approximately $91,000 of the $187,000 outstanding in legal bills. Mulcahy brought claims for breach of contract, common counts and quantum meruit, seeking approximately $111,500 in fees and interest, costs, and “such other and further relief as the Court may deem just and proper,” but did not specify attorney fees.

ATG filed a complaint against Mulcahy in Orange County Superior Court, alleging claims for fraudulent concealment, breach of fiduciary duty, restitution, and declaratory relief. ATG sought, among other remedies, compensatory and punitive damages, and attorney fees. Mulcahy filed a motion to compel arbitration, which the court eventually granted.

ATG filed a counterclaim and response to Mulcahy’s claim, setting forth numerous affirmative defenses and alleging the same causes of action it had presented in its superior court complaint.

On July 25, 2017, Mulcahy filed a motion to dismiss the counterclaim with the arbitrator. Mulcahy characterized ATG’s claims as “a disguised legal malpractice action based largely on fiction.” Among other things, Mulcahy argued that all of ATG’s claims except fraudulent concealment were time-barred by the one-year statute of limitations (§ 340.6), and ATG’s claim for fraudulent concealment failed to meet the pleading standards for fraud.

On July 27, Mulcahy sent a letter to ATG’s counsel, demanding ATG dismiss both the complaint (which was stayed in superior court) and the arbitration counterclaim. The letter stated that failure to comply would result in a motion for sanctions under sections 128.5 and 128.7, and a subsequent action for malicious prosecution. This letter set forth at some length Mulcahy’s view of the deficiencies in the counterclaim.

ATG’s counsel responded, stating, among other things, that “even where a defense of statute of limitations potentially applies, the burden is on the defending party to prove that defense.” ATG denied that sanctions were warranted, and asserted that as a self-representing law firm, Mulcahy was “not incurring actual fees.”

Mulcahy’s motion to dismiss was fully briefed. The arbitrator issued a tentative decision stating that ATG’s motion was procedurally proper, granting ATG’s motion to dismiss in its entirety. The arbitrator denied a late request by Mulcahy to strike several of ATG’s affirmative defenses, directing counsel to file a separate motion. Ultimately, the arbitrator reversed its tentative ruling on the fraudulent concealment cause of action and allowed it to proceed. The arbitrator also eventually denied Mulcahy’s motion to strike ATG’s affirmative defenses as improper under the relevant arbitration rules.

Subsequently, Mulcahy filed another motion seeking to dismiss the fraudulent concealment cause of action, the only operative part of ATG’s counterclaim. ATG took Mulcahy’s deposition, and according to ATG’s counsel, the deposition led to the conclusion that insufficient evidence supported the intent prong of fraudulent concealment. ATG subsequently withdrew the counterclaim.

On the evening before the hearing on its motion was scheduled, Mulcahy filed a response to the withdrawal, requesting sanctions against ATG “in the amount of attorneys’ fees that Mulcahy expended to put together the dispositive motion and defend the deposition.” Mulcahy’s request was ultimately denied.

After a four-day hearing, the arbitrator issued an interim award. As ATG concedes, “the arbitrator found in favor of [Mulcahy], and against ATG, on virtually every claim and defense raised in the parties’ respective pleadings.” The arbitrator did not soft-pedal his conclusions, finding that the case was “exactly” what ATG claimed it was not: a simple dispute about unpaid attorney fees. “ATG’s affirmative defense of fraudulent concealment and the other issues raised during the arbitration hearing are nothing but ‘red herrings’ intended to avoid payment of the [Mulcahy’s] legal fees.” The arbitrator characterized Mulcahy’s services as “exceptional, successful” and the fees as “reasonable and extremely necessary” and referred to ATG’s actions as a “despicable effort to ‘stiff’” Mulcahy. Further, the arbitrator stated ATG’s claims that Mulcahy “acted unethically and in violation of the Rules of Professional Conduct are an insult” and claims of wrongdoing were nothing more than “a ruse.”

Thus, while the arbitrator noted that a pro se attorney cannot recover attorney fees, fees and costs were recoverable under section 128.5. In addition to awarding Mulcahy $119,931.15 in damages, arbitration fees, and future interest, the arbitrator also awarded “[m]onetary sanctions, pursuant to [section] 128.5.”

Mulcahy filed a motion for arbitration costs and monetary sanctions, seeking approximately $25,600 in arbitration fees and expenses and approximately $69,900 in sanctions. Without further briefing, the arbitrator subsequently issued a final award, which included an award of $119,926.47 in sanctions and made the entire award joint and several against ATG and its counsel. ATG contacted JAMS and raised the fact that it had not yet briefed the issue, and the arbitrator subsequently apologized and set a briefing schedule.

After briefing and a telephonic hearing, the arbitrator issued an amended final award (the amended award), granting Mulcahy the damages sought, future interest, and arbitration costs. The arbitrator also imposed $25,000 in sanctions on ATG for “‘bad faith activities or tactics that are frivolous’” for filing the lawsuit in superior court and another $25,000 for asserting affirmative defenses and pursuing a counterclaim that were “unsupported by any evidence.” The arbitrator also clarified that only the sanctions award was joint and several against ATG and its counsel.

Mulcahy petitioned to confirm the amended award, and ATG responded and requested the court correct it. The matters were fully briefed and a hearing was held. The court ultimately granted Mulcahy’s petition to confirm the award, and entered judgment based on the amended award. ATG timely appealed.

II

DISCUSSION

A. California Arbitration Statutes and Standard of Review

“The California Arbitration Act (CAA; § 1280 et seq.) ‘represents a comprehensive statutory scheme regulating private arbitration in this state.’” (Cooper v. Lavely & Singer Professional Corp. (2014) 230 Cal.App.4th 1, 10; see Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).) Under the CAA, “[t]he scope of judicial review of arbitration awards is extremely narrow because of the strong public policy in favor of arbitration and according finality to arbitration awards. [Citations.] An arbitrator’s decision generally is not reviewable for errors of fact or law.” (Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 21, 33; see Moncharsh, supra, 3 Cal.4th at p. 11.)

This principle was recently reaffirmed by the California Supreme Court in Heimlich v. Shivji (2019) 7 Cal.5th 350, 358. “A court’s power to correct or vacate an erroneous arbitration award is closely circumscribed.” (Id. at p. 367.) As the court explained: “Most legal errors in arbitration are not reviewable. [Citations.] An award may be vacated only for fraud, corruption, misconduct, an undisclosed conflict, or similar ‘circumstances involving serious problems with the award itself, or with the fairness of the arbitration process.’ [Citations.] Otherwise, judicial corrections are limited to remedying ‘obvious and easily correctable mistake[s],’ ‘technical problem[s],’ and actions in excess of authority so long as the correction leaves the merits of the decision unaffected. [Citation.] ‘[B]y voluntarily submitting to arbitration, the parties have agreed to bear the risk [of uncorrectable legal or factual error] in return for a quick, inexpensive, and conclusive resolution to their dispute.’” (Ibid.)

Accordingly, judicial review of an arbitration award is ordinarily limited to the statutory grounds for vacating an award under section 1286.2 or correcting an award under section 1286.6. (Moncharsh, supra, 3 Cal.4th at pp. 12-13; Sunline Transit Agency v. Amalgamated Transit Union, Local 1277 (2010) 189 Cal.App.4th 292, 302-303.) One of the grounds set forth in section 1286.2 is an arbitrator exceeding his or her authority, and that is ATG’s principal complaint here. (§ 1286.2, subd. (a)(4).) ATG also argues awarding sanctions was against public policy.

As for the relevant standard of review, “[t]o the extent the trial court made findings of fact in confirming the award, we affirm the findings if they are supported by substantial evidence. [Citation.] To the extent the trial court resolved questions of law on undisputed facts, we review the trial court’s rulings de novo. [Citation.] [¶] We apply a highly deferential standard of review to the award itself, insofar as our inquiry encompasses the arbitrator’s resolution of questions of law or fact. Because the finality of arbitration awards is rooted in the parties’ agreement to bypass the judicial system, ordinarily ‘“[t]he merits of the controversy between the parties are not subject to judicial review.”’” (Cooper v. Lavely & Singer Professional Corp., supra, 230 Cal.App.4th at pp. 11-12.)

B. Request for Judicial Notice

Without objection, ATG’s and their attorneys’ request for judicial notice is granted pursuant to Evidence Code sections 451, 452 and 459.

C. Excess of Authority

ATG offers several arguments asserting the arbitrator exceeded his authority: by issuing an award that violated public policy, by deciding an issue not properly submitted to arbitration, by acting outside the scope of the parties’ engagement agreement by awarding a remedy that was not authorized by law. All of these are valid grounds for vacating (or correcting) an arbitration award under section 1286.2. (Shahinian v. Cedars-Sinai Medical Center (2011) 194 Cal.App.4th 987, 999-1000 (Shahinian).)

1. Public Policy

While an arbitration award can be vacated if it violates public policy, the California Supreme Court has cautioned a court should be reluctant to overturn an arbitrator’s award without “an explicit legislative expression of public policy” (Moncharsh, supra, 3 Cal.4th at p. 32) or, as the Court of Appeal has stated, a “well-defined public policy.” (Department of Personnel Administration v. California Correctional Peace Officers Assn. (2007) 152 Cal.App.4th 1193, 1195.) Courts may only apply this doctrine in “limited and exceptional circumstance[s].” (Jordan v. California Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 438.) “This exception is applicable only when there has been ‘“a clear expression of illegality or public policy”’ that undermines the presumption in favor of private arbitration.” (Ahdout v. Hekmatjah, supra, 213 Cal.App.4th at p. 38.)

Such relatively rare examples include arbitration decisions that violated the state constitution’s prohibition on gifts of public funds (Jordan v. California Dept. of Motor Vehicles, supra, 100 Cal.App.4th at p. 452), required a party to violate an existing court-ordered injunction (City of Palo Alto v. Service Employees Internat. Union (1999) 77 Cal.App.4th 327, 339-340), disregarded the disgorgement provisions of California’s contractor licensing law (Ahdout v. Hekmatjah, supra, 213 Cal.App.4th at p. 38), permitted an unlicensed realtor to recover (All Points Traders, Inc. v. Barrington Associates (1989) 211 Cal.App.3d 723, 726-727), and enforced an illegal contract (Loving & Evans v. Blick (1949) 33 Cal.2d 603, 612-613). All of these cases involve significant public interests or consumer protections.

ATG claims this case warrants invoking this rare exception to the rule of arbitral finality and prohibition of judicial review because the arbitrator’s decision purportedly violated the procedural protections of section 128.5. The policies at play here are not about the public interest or consumer protection, but technical matters relevant to attorneys, and to a lesser extent, their clients. The court in Moncharsh rejected the contention that a fee-splitting provision in the pertinent contract violated public policy to the extent that judicial review of the award was appropriate. (Moncharsh, supra, 3 Cal.4th at pp. 31-33.) “We perceive, however, nothing in the Rules of Professional Conduct at issue in this case that suggests resolution by an arbitrator of what is essentially an ordinary fee dispute would be inappropriate or would improperly protect the public interest. Accordingly, judicial review of the arbitrator’s decision is unavailable.” (Id. at pp. 32-33.)

This, too, is an “ordinary fee dispute,” regardless of the procedural differences, and no overarching public policy requires an exception to the general rule of arbitral finality. Indeed, the far more important public policy provisions in section 128.5 are the substantive provisions adopted to discourage frivolous litigation and dilatory tactics – a finding that ATG does not bother to dispute here.

Even if the arbitrator incorrectly applied section 128.5, “‘in either determining the appropriate law or applying it,’” the parties may obtain court review of the merits “only if the arbitration agreement expressly provided that the arbitrator’s errors of law were reviewable in court.” (Baize v. Eastridge Companies, LLC (2006) 142 Cal.App.4th 293, 301, fn. omitted.) The engagement agreement includes no such provision. Any claim that enforcing section 128.5 in an arbitral forum violates due process is without merit. As courts have found repeatedly, due process requires a state actor, not a private forum agreed to by the parties. (See, e.g., Shahinian, supra, 194 Cal.App.4th at p. 1008 [constitutional limitations on punitive damage awards do not apply to private arbitration].) Simply put, there are no grounds to find a violation of public policy that would require vacating the arbitrator’s decision.

2. Issue Submitted to Arbitration

ATG first argues the issue of sanctions was not properly submitted to arbitration. ATG admits this is generally a question of what the parties have included in their prayer for relief, citing Moshonov v. Walsh (2000) 22 Cal.4th 771, 776. ATG then switches, however, to a discussion of whether the engagement agreement permitted such an award (and we will discuss that issue in a moment).

Mulcahy’s prayer for relief in its arbitration demand included “cost of suit incurred” and “other and further relief as the Court may deem just and proper.” This sufficiently encompasses procedural relief such as sanctions. Indeed, it is impossible to envision how sanctions for conduct during arbitration could ever be awarded if the parties were required to include such a request in their initial claim.

3. Scope of the Parties’ Agreement to Arbitrate

ATG next argues the arbitrator exceeded his powers by fashioning an award outside the scope of the engagement agreement. “Code of Civil Procedure section 1283.47 provides the arbitrator’s written award shall determine all submitted questions ‘necessary in order to determine the controversy.’” (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 372, fn. omitted (Advanced Micro Devices).) “[I]t is for the arbitrators to determine what issues are ‘necessary’ to the ultimate decision. . . . ‘Likewise, any doubts as to the meaning or extent of an arbitration agreement are for the arbitrators and not the court to resolve.’” (Ibid.)

“Arbitrators . . . have wide discretion . . . to fashion a just remedy . . . as long as the remedy is rationally related to the contract and the breach.” (Swan Magnetics, Inc. v. Superior Court (1997) 56 Cal.App.4th 1504, 1511.) “Were courts to reevaluate independently the merits of a particular remedy, the parties’ contractual expectation of a decision according to the arbitrator[’s] best judgment would be defeated.” (Advanced Micro Devices, supra, 9 Cal.4th at p. 375.) “[I]n the absence of more specific restrictions in the arbitration agreement, the submission or the rules of arbitration, the remedy an arbitrator fashions does not exceed his or her powers if it bears a rational relationship to the underlying contract as interpreted, expressly or impliedly, by the arbitrator and to the breach of contract found, expressly or impliedly, by the arbitrator.” (Id. at p. 367.)

ATG argues that because the engagement agreement did not include an attorney fees provision, an award of sanctions under section 128.5 was therefore outside the scope of the agreement. We disagree. The parties engagement agreement that “[a]ny disagreement will be submitted” to arbitration for “a final and binding decision about the outcome of the dispute.” The arbitrator was authorized to hear “any dispute which cannot be resolved amicably.” This broad ambit includes litigation conduct that may be subject to sanctions. “Absent an express and unambiguous limitation in the contract or the submission to arbitration, an arbitrator has the authority to find the facts, interpret the contract, and award any relief rationally related to his or her factual findings and contractual interpretation.” (Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1182.)

“While the agreement does not explicitly address jurisdiction over ancillary matters . . . , neither does it exclude them from consideration. ‘Absent an express and unambiguous limitation in the contract or the submission to arbitration, an arbitrator has the authority to find the facts, interpret the contract, and award any relief rationally related to his or her factual findings and contractual interpretation.’” (Heimlich v. Shivji, supra, 7 Cal.5th at p. 358.) Procedural matters such as litigation conduct are rationally related to the underlying dispute.

4. Remedy Authorized by Law

ATG’s next argument is related to its others on the issue of the arbitrator’s powers. Specifically, ATG claims the award of sanctions was not authorized by law because self-represented attorneys are not entitled to attorney fees, either by direct award or through a sanctions award. (Musaelian v. Adams, supra, 45 Cal.4th at p. 519.) ATG quotes the language from two separate sections of the award to demonstrate that the sanctions award was intended as an attorney fees award to Mulcahy, asking us to read the two sections as if they are one.

The part of the award granting sanctions states that the arbitrator was awarding “[m]onetary sanctions, pursuant to . . . [s]ection 128.5, for ‘bad faith activities or tactics that are frivolous . . .’” both for filing the superior court lawsuit and for asserting affirmative defenses and a counterclaim “unsupported by any evidence.” Mulchay is asking that we find there is no substantial evidence the sanctions were awarded as sanctions, not as attorney fees, but we cannot reach this conclusion from either the award or any other documents in the record.

Among other things, had the arbitrator intended the award to compensate Mulcahy for attorney fees, the amount awarded was substantially less than the amount Mulcahy proposed as compensation for its expenses (approximately $70,000) or the value of what it would have charged another client for the same work (approximately $182,000). The arbitrator’s decision to divide the sanctions into two $25,000 awards is another fact that does not support ATG’s conclusion that the sanctions were intended as attorney fees. Nor do we have the authority to review the amounts to determine their fairness or rationality. Nor can we review the reasoning by which the arbitrator reached his conclusions. (Moncharsh, supra, 3 Cal.4th at p. 11.)

Further, parties to private arbitrations “have bargained for an arbitrator to exercise his or her ‘flexibility, creativity, and sense of fairness’ in selecting a particular remedy. [Citation.] ‘Were courts to reevaluate independently the merits of a particular remedy, the parties’ contractual expectations . . . would be defeated.’ [Citation.] Accordingly, an arbitrator generally ‘does not exceed his or her powers’ when imposing a particular remedy if the remedy ‘bears a rational relationship’ to the underlying claim or breach, even if the remedy could not have been awarded by a jury or court.”

(Emerald Aero, LLC v. Kaplan (2017) 9 Cal.App.5th 1125, 1139, italics added.)

The relatively rare cases where an arbitrator has been found to have acted in excess of his or her powers by awarding a remedy not authorized by law typically involve cases where the remedy was expressly inconsistent with the relevant contract or California law. In O’Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1060-1061, for example, the arbitrator ordered a forfeiture of certain assets which was prohibited by the terms of the underlying agreement and California law. The arbitrator “in effect awarded ‘a remedy expressly forbidden by the arbitration agreement,’” acting “in excess of his power and jurisdiction.” (Id.at p. 1061.) But nothing in the engagement agreement between ATG and Mulcahy indicates an intent to limit the arbitrator’s discretion to fashion remedies. (Advanced Micro Devices, supra, 9 Cal.4th at pp. 383-384.)

In most cases, courts have found arbitrators to have acted within their powers, even if the ruling would be erroneous if it had been entered by a court of law. (Moore v. First Bank of San Luis Obispo (2000) 22 Cal.4th 782.) In Moore, the arbitrator failed to award attorney fees despite a mandatory attorney fees provision in the contract. (Id. at p. 784.) “That failure amounted at most to an error of law on a submitted issue, which does not exceed the arbitrators’ powers under the holding of Moncharsh, supra, 3 Cal.4th at page 28.” (Id. at p. 788.)

Accordingly, even if the arbitrator did intend the sanctions as an award of attorney fees, as ATG contends, it would be an ordinary, unreviewable legal error. In Shahinian, supra, 194 Cal.App.4th at page 1006, the defendant asked the court to find the arbitrator exceeded her powers by awarding punitive damages of a ‘[c]onstitutionally excessive’ amount that would never be allowed in court.” The court concluded “the agreement gave the arbitrator broad authority to grant remedies available in court, and made no reference to punitive damages or to any limitation on the amount of such an award. If the punitive damages award was excessive, the arbitrator’s error would be no different from other errors of law, which are generally not reviewable ‘whether or not such error appears on the face of the award and causes substantial injustice to the parties.’” (Ibid.)

D. Merits of the Issue Submitted

In a four-sentence argument at the end of its opening brief, ATG argues that “[t]he Award, in substance, amounts to an allocation of purported attorney fees to [Mulcahy]. As an item of costs, it therefore does not go to the merits . . . .” Therefore, ATG claims, the award may be corrected under section 1286.6, subdivision (b). As we have already explained, we find no error in imposing the sanctions, and therefore need not reach this issue.

III

DISPOSITION

The judgment is affirmed. Mulcahy is entitled to its costs on appeal.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

Filed 1/16/20 Travelers Property Casualty Co. of America v. KLA-Tencor Corp. 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

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA,

Plaintiff, Cross-defendant and Respondent,

v.

KLA-TENCOR CORPORATION,

Defendant, Cross-complainant and Appellant.

H044890

(Santa Clara County

Super. Ct. No. CV288053)

Respondent Travelers Property Casualty Company of America (Travelers) prevailed on its motion for summary judgment in this duty-to-defend insurance dispute with its insured, appellant KLA-Tencor Corporation (KLA). The superior court concluded that the language of the commercial liability insurance policies Travelers had issued to KLA, which covered claims for “malicious prosecution,” could not have created an objectively reasonable expectation that Travelers would defend a Walker Process claim against KLA. The Walker Process claim that KLA tendered to Travelers alleged that KLA had fraudulently procured a patent from the Patent and Trademark Office (PTO) and used that patent to attempt to monopolize the market for a product. Travelers declined to defend KLA against that claim. KLA contends that it was objectively reasonable for it to expect the “malicious prosecution” coverage in its policies to extend to this Walker Process claim. We conclude otherwise and affirm the judgment.

I. Background

KLA was the insured and Travelers was the insurer under a series of commercial liability policies issued to KLA covering the period from 2010 to 2015. One of the coverages under these policies was for “personal and advertising injury liability,” which was defined as “ ‘personal injury’ or ‘advertising injury.’ ” The dispute in this case concerns only the “personal injury” coverage. “Personal injury” was defined as “injury, other than ‘advertising injury’, caused by one or more of the following offenses: [¶] (1) False arrest, detention or imprisonment; [¶] (2) Malicious prosecution; [¶] . . . [¶] (4) Oral or written publication, including publication by electronic means, of material . . . .” (Italics added.)

One of the exclusions from these policies was the “Intellectual Property” exclusion. It excluded: “ ‘Personal injury’ or ‘advertising injury’ arising out of any actual or alleged infringement or violation of any of the following rights or laws, or any other ‘personal injury’ or ‘advertising injury’ alleged in any claim or ‘suit’ that also alleges any such infringement or violation: . . . Patent . . . [¶] . . . [¶] . . . or [¶] . . . Other intellectual property rights or laws.”

Xitronix and KLA manufacture competing products in the “active dopant metrology market,” and the two companies have a history of legal disputes between them. In 2008, Xitronix filed a federal action against KLA seeking to invalidate some of the claims in KLA’s “‘441 patent.” KLA claimed in turn that Xitronix had infringed on KLA’s ‘441 patent. Xitronix prevailed in the 2008 action. Several of KLA’s patent claims in its ‘441 patent were invalidated for indefiniteness and obviousness, and KLA’s infringement claim was rejected. In 2011, Xitronix brought a tort action against KLA in Texas state court related to KLA’s disparagement of Xitronix’s product. KLA prevailed on summary judgment, and that judgment was affirmed on appeal in 2014.

In 2014, Xitronix filed a federal antitrust action for damages against KLA in federal court in Texas alleging a single Walker Process cause of action for “Attempted Monopolization” in violation of the Sherman Act and the Clayton Act. The 2014 Xitronix action was based on allegations that, from 2011 to 2014, KLA had “fraudulently prosecut[ed] through issuance certain patent claims” that KLA knew had been ruled to be invalid in the 2008 action and that KLA did so with the intent to “monopolize and destroy competition . . . .”

The 2014 action concerned KLA’s “‘260 patent,” which KLA had obtained in 2014 after the invalidation of portions of KLA’s ‘441 patent. Xitronix alleged that KLA had purposely sought to include in the ‘260 patent claims that had been invalidated in the litigation concerning the ‘441 patent. Xitronix alleged that KLA had engaged in “fraudulent conduct before the United States Patent and Trademark Office (‘the PTO’)” in KLA’s “prosecution of the ‘260 patent” before the PTO. Xitronix alleged that KLA’s “fraudulent prosecution” “and procurement” of the ‘260 patent had been “undertaken in bad faith” to monopolize the market and preclude Xitronix from competing with KLA. Xitronix contended that KLA’s “entire prosecution of the ‘260 patent was without any objectively reasonable basis.” It asserted that KLA’s “continued prosecution of patent claims” created a “potential litigation threat” that deterred potential investors in Xitronix. Xitronix noted in its complaint that it previously had been “sidelined by KLA’s false allegations of infringement during the 2008-2010 timeframe.”

KLA asked Travelers to defend and indemnify KLA in the 2014 Xitronix action. Travelers declined on the ground that there was no potential for coverage. Travelers brought a declaratory relief action in Santa Clara County seeking to resolve whether it had a duty to defend and indemnify KLA in the 2014 Xitronix action under the commercial liability or CyberFirst policies it had issued to KLA. KLA responded with a cross-complaint for breach of contract and declaratory relief. KLA alleged that it had been damaged by Travelers’ refusal to defend KLA in the 2014 Xitronix action. It also sought declaratory relief concerning Travelers’ duty to defend and indemnify KLA in the 2014 Xitronix action.

In June 2016, Travelers filed a motion for summary judgment. Travelers contended that the allegations in the 2014 Xitronix action were not covered by the commercial liability policies or were excluded under the intellectual property exclusion. It relied solely on the policy language. KLA opposed Travelers’ motion, but it filed a cross-motion for “partial summary judgment” seeking adjudication of the declaratory relief causes of action in both Travelers’ action and KLA’s action. KLA too relied solely on the policy language. It claimed that Xitronix’s allegations in the 2014 action fell within the policy’s coverage for “malicious prosecution” and did not come within the intellectual property exclusion. In KLA’s view, the dispute between the parties “boil[ed] down to the proper interpretation of the ambiguous term ‘malicious prosecution,’ ” in the policies. KLA asked the court to deny Travelers’ motion and grant KLA’s motion.

The superior court granted Travelers’ motion and denied KLA’s motion. It found: “No one could reasonably construe that complaint’s allegations of a ‘Walker Process’ violation, fraudulent behavior in a nonjudicial proceeding before the Patent and Trademark Office, as a claim for ‘malicious prosecution’ under California law (or Texas law) covered by the policy as a ‘personal injury.’ ” The court found that the 2014 Xitronix action did not fall within the coverage of the commercial liability policies, and it therefore did not address whether the intellectual property exclusion applied. The court entered judgment for Travelers. KLA timely filed a notice of appeal.

II. Discussion

KLA contends that the coverage clause of the insurance contract between KLA and Travelers providing coverage for “malicious prosecution” was ambiguous and could be reasonably construed as potentially applying to the Walker Process allegations in the 2014 Xitronix action.

“When determining whether a particular policy provides a potential for coverage and a duty to defend, we are guided by the principle that interpretation of an insurance policy is a question of law. [Citation.] The rules governing policy interpretation require us to look first to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it.” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18 (Waller).)

“The fundamental rules of contract interpretation are based on the premise that the interpretation of a contract must give effect to the ‘mutual intention’ of the parties. ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) The “clear and explicit” meaning of these provisions, interpreted in their “ordinary and popular sense,” unless “used by the parties in a technical sense or a special meaning is given to them by usage” (id., § 1644), controls judicial interpretation. (Id., § 1638.)’ [Citations.] A policy provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable. [Citation.] But language in a contract must be interpreted as a whole, and in the circumstances of the case, and cannot be found to be ambiguous in the abstract. [Citation.] Courts will not strain to create an ambiguity where none exists. [Citation.]” (Waller, supra, 11 Cal.4th at pp. 18-19.)

“ ‘[A]mbiguities are generally construed against the party who caused the uncertainty to exist (i.e., the insurer) in order to protect the insured’s reasonable expectation of coverage.’ ” (Palmer v. Truck Ins. Exchange (1999) 21 Cal.4th 1109, 1115.) “Whether policy language is ambiguous is a question of law that we review de novo. [Citations.] Any ambiguity must be resolved in a manner consistent with the objectively reasonable expectations of the insured in light of the nature and kind of risks covered by the policy. [Citation.] The interpretation of a contract, including the resolution of any ambiguity, is solely a judicial function, unless the interpretation turns on the credibility of extrinsic evidence.” (State Farm General Ins. Co. v. Mintarsih (2009) 175 Cal.App.4th 274, 283.) Coverage clauses in insurance contracts are construed broadly, and ambiguities are generally resolved in favor of coverage. (Montrose Chemical Corp. v. Admiral Ins. Co. (1995) 10 Cal.4th 645, 667.)

“[T]he determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy. Facts extrinsic to the complaint give rise to a duty to defend when they reveal a possibility that the claim may be covered by the policy.” (Waller, supra, 11 Cal.4th at p. 19.) “If any facts stated or fairly inferable in the complaint, or otherwise known or discovered by the insurer, suggest a claim potentially covered by the policy, the insurer’s duty to defend arises and is not extinguished until the insurer negates all facts suggesting potential coverage. On the other hand, if, as a matter of law, neither the complaint nor the known extrinsic facts indicate any basis for potential coverage, the duty to defend does not arise in the first instance.” (Scottsdale Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643, 655.)

KLA’s claim that “malicious prosecution” is ambiguous is primarily based on the Ninth Circuit Court of Appeal’s decision in Lunsford v. American Guar. & Liab. Ins. Co. (9th Cir. 1994) 18 F.3d 653 (Lunsford). In Lunsford, the insurance policy covered “ ‘malicious prosecution,’ ” and the insured was sued for “abuse of process.” (Lunsford, at p. 654.) The Ninth Circuit held that there was a duty to defend because there was a potential for coverage: “ ‘Malicious prosecution’ as used in the policy is ambiguous because it is not defined in the policy and because a layperson’s understanding would differ from the legal definition of the term.” (Ibid.) “A layperson could believe reasonably that the words ‘malicious prosecution’ only required a lawsuit or other legal proceeding to be brought maliciously or spitefully for an improper purpose. A layperson also could believe reasonably that a counterclaim for abuse of process satisfied that requirement. . . . [¶] Although the elements of the two torts technically are different, the distinction is not as clear as [the insurer] insists.” (Lunsford, at p. 655.) “There is no reason, given the overlap between malicious prosecution and abuse of process (particularly in the eyes of those untrained in the law), why persons who purchase insurance covering the cost of defending against the one claim would not also expect the contract to cover the cost of defending against the other. The term as used in the policy is ambiguous. Therefore, we resolve the issue in favor of coverage.” (Lunsford, at p. 656.)

While it is true that the Ninth Circuit held in Lunsford that “malicious prosecution” was “ambiguous” in that case, “language in a contract must be interpreted as a whole, and in the circumstances of the case, and cannot be found to be ambiguous in the abstract.” (Waller, supra, 11 Cal.4th at pp. 18-19.) The mere fact that “malicious prosecution” was deemed ambiguous in Lunsford does not mean that it is ambiguous in this case. Our inquiry is whether it is objectively reasonable for an insured to understand “malicious prosecution” to include Walker Process claims. KLA argues that it is because an insured could believe that “malicious prosecution” includes conduct before the PTO. KLA argues: “Just as a layperson could reasonably understand the term ‘malicious prosecution’ to encompass abuse-of-process claims, a layperson could also reasonably understand ‘malicious prosecution’ to cover Walker Process claims. Malicious prosecution, abuse-of-process, and Walker Process claims all require affirmative abuse of legal processes and procedures with an ulterior motive or purpose. [Fn. omitted.] A layperson would therefore reasonably understand all three types of claims to fall under the Commercial Policies’ coverage for ‘malicious prosecution.’ At a minimum, whether a lay person could reasonably understand the term ‘malicious prosecution’ to encompass Walker Process claims creates a doubt regarding whether Travelers has a duty to defend.”

Coverage language is “considered ambiguous when it is capable of two or more constructions, both of which are reasonable” (Waller, supra, 11 Cal.4th at pp. 18-19), but an insured’s proposed construction must be “consistent with the objectively reasonable expectations of the insured in light of the nature and kind of risks covered by the policy.” (State Farm General Ins. Co. v. Mintarsih, supra, 175 Cal.App.4th 274, 283, italics added.) Here, KLA argues that Walker Process claims are so similar to malicious prosecution and abuse of process claims that it would be objectively reasonable for an insured to expect “malicious prosecution” coverage to extend to Walker Process claims. We disagree. Unlike a malicious prosecution claim or an abuse of process claim, both of which are commonly understood to be premised on actions in legal proceedings, a Walker Process claim does not necessarily involve any legal proceedings. A Walker Process claim arises from fraud on the PTO, not any court, and the use of a fraudulently procured patent to attempt to monopolize the market. Neither the fraud element nor the use element necessarily involves any legal proceedings. Since “malicious prosecution” is commonly understood to refer to legal proceedings, an objectively reasonable insured could not expect “malicious prosecution” coverage to extend to claims that, unlike malicious prosecution and abuse of process claims, do not necessarily involve any legal proceedings.

KLA’s reliance on CNA Casualty of California v. Seaboard Surety Co. (1986) 176 Cal.App.3d 598 (CNA) is misplaced. In CNA, the specific allegations in the complaint were “arguably within” the policy’s coverage language despite the fact that the cause of action was labelled “antitrust.” (CNA, at pp. 607-609.) Unlike Xitronix’s allegations here, the allegations in CNA that potentially fell within the policy’s malicious prosecution coverage were based on “ ‘counterclaims’ ” in a court action. (CNA, at p. 608.)

KLA argues that it is irrelevant whether “malicious prosecution” coverage would extend to “a generic Walker Process claim.” In its view, the coverage question turns on “the ‘enforcement’ element of [a Walker Process] claim and the ‘unique’ facts supporting that [enforcement] element here.” (Fn. omitted.) KLA claims that Xitronix’s Walker Process claim “meets the legal elements of malicious prosecution and/or abuse of process.” KLA reasons that the fact that a Walker Process claim requires “enforcement” of the fraudulently obtained patent means that a court action or something akin thereto is necessarily required, thus making the claim essentially one for malicious prosecution or abuse of process. To support this claim, KLA essentially imports into Xitronix’s 2014 action the claims that Xitronix made in its 2011 Texas state court action. KLA argues that “the ‘enforcement’ element of the underlying [2014 Xitronix Walker Process] claim is based on allegations that KLA maliciously prosecuted a prior patent-infringement claim against Xitronix for purposes of quashing competition. A layperson would reasonably understand these facts to fall within the scope of the ‘malicious prosecution’ offenses covered by the Policies.” (Italics added.) KLA claims that Xitronix’s 2014 complaint was based on allegations that KLA “competitively harmed Xitronix by enforcing that patent, including in court through prior litigation . . . .” (Italics added.)

These contentions lack merit. First, our construction of the coverage language based on the insured’s objectively reasonable expectations is not properly premised on the allegations in the specific complaint at issue. Coverage language is construed as of the time of issuance of the policy, so construction of that language cannot depend on the precise allegations made in Xitronix’s subsequent complaint. It is only after the coverage language has been properly construed that we proceed to the next step and examine the complaint to determine whether there was a potential for coverage that triggered the duty to defend. Second, KLA’s argument that Xitronix’s 2014 action was based on KLA’s prior infringement claim against Xitronix is simply inaccurate. Xitronix’s complaint plainly did not allege that KLA had enforced the ‘260 patent, which was the one that Xitronix alleged had been obtained through fraud on the PTO, through the prior litigation between KLA and Xitronix because it was undisputed that the ‘260 patent was not issued until 2014, after the resolution of that litigation. Furthermore, that prior litigation concerned the ‘441 patent, not the ‘260 patent, and Xitronix did not contend in its 2014 action that the ‘441 patent had been procured through fraud on the PTO. Consequently, the ‘441 patent could not have been the basis for Xitronix’s 2014 Walker Process claim.

Although KLA argues that there was a potential for coverage due to the prior litigation, that argument ignores the actual basis for Xitronix’s 2014 action. The mere fact of prior litigation between two parties does not mean that all subsequent actions necessarily or even potentially will come within coverage for “malicious prosecution.” That determination depends on the nature of the allegations in the action. Here, Xitronix’s 2014 action was necessarily limited to KLA’s procurement and use of the ‘260 patent, which KLA obtained in 2014. The history of prior litigation did not change the basis for this claim into one for malicious prosecution because there were no allegations of any legal proceedings involving the ‘260 patent.

Xitronix’s 2014 action alleged that KLA had enforced the ‘260 patent through the implied threat of litigation. Xitronix alleged that KLA had used the ‘260 patent to create “a potential liability to suit” for any Xitronix customers. Such an allegation does not have the potential to fall within the policy’s “malicious prosecution” coverage because it is not premised on any actual legal proceedings. Under these circumstances, there was no potential for coverage under the “malicious prosecution” coverage in the policy. Hence, the superior court correctly ruled that Travelers had met its burden of demonstrating that it had no duty to defend KLA in the 2014 Xitronix action.

III. Disposition

The judgment is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Bamattre-Manoukian, J.

Travelers v. KLA-Tencor

H044890

From the San Mateo Superior Court records, case number 19CIV05964

On September 29, 2019, San Mateo County Sheriff Carlos Bolanos confiscated firearms and related materials from DOUGLAS LLOYD RAINSFORD upon detention of under Welfare and Institutions Code section 5150 for a mental and psychological evaluation.

On October 9th the sheriff petitioned the court seeking an order to retain and not return the firearms

Chief Deputy County Counsel David Silberman filed a declaration and motion to file documents under seal so they could not be viewed by the public.

The motion was to protect Rainsford’s privacy related to his mental condition.

The judge granted the sheriff’s motion to keep the firearms unless Rainsford timely filed a request for a hearing.

The online case docket:

Case Information

19-CIV-05964 | COUNTY OF SAN MATEO SHERIFF CARLOS BOLANOS vs. DOUGLAS LLOYD RAINSFORD

Case Number
19-CIV-05964

Court
Civil Unlimited

File Date
10/09/2019

Case Type
(43) Unlimited Other Petition (Not Spec)

Case Status
Active

Party
Respondent
RAINSFORD, DOUGLAS LLOYD

Petitioner
COUNTY OF SAN MATEO SHERIFF CARLOS BOLANOS

Active Attorneys

Lead Attorney
SILBERMAN, DAVID A.
Retained

Cause of Action

File Date
Cause of Action
Type
Filed By
Filed Against
10/09/2019 Petition Re: Firearms Action COUNTY OF SAN MATEO SHERIFF CARLOS BOLANOS
RAINSFORD, DOUGLAS LLOYD
Events and Hearings

10/09/2019 New Filed Case

10/09/2019 Petition re: Firearms

Petition re: Firearms

10/09/2019 Civil Case Cover Sheet

Civil Case Cover Sheet

10/09/2019 Motion to Seal Document(s)

Motion to Seal Document(s)

10/09/2019 Memorandum of Points and Authorities in Support

Memorandum of Points and Authorities in Support OF MOTION TO SEAL RECORDS

Comment
OF MOTION TO SEAL RECORDS
10/09/2019 Declaration in Support

Declaration in Support OF PETITION RE CONFISCATED FIREARMS AND AMMUNITION AND MOTION TO FILE UNDER S

Comment
OF PETITION RE CONFISCATED FIREARMS AND AMMUNITION AND MOTION TO FILE UNDER SEAL
10/09/2019 Sealed Document by Order of the Court

Comment
EXHIBIT A TO DECLARATION OF DAVID A. SILBERMAN IN SUPPORT OF PETITION RE CONFISCATED FIREARMS AND AMMUNITION AND MOTION TO FILE UNDER SEAL
10/09/2019 Cause Of Action

Action
Petition Re: Firearms File Date
10/09/2019
11/25/2019 Motion to Seal

~CIV Minute Order – Motion to Seal 11/25/2019

Judicial Officer
Davis, III, Leland

Hearing Time
9:00 AM

Result
Held

Comment
RECORDS

11/25/2019 Tentative ruling adopted and becomes order:

Comment
COUNTY OF SAN MATEO SHERIFF CARLOS BOLANOS’ MOTION TO SEAL TO SEAL RECORDS. The motion is GRANTED. The information contained in Ex. A is private in nature and this privacy interest constitutes an overriding interest that overcomes the public right of access and supports sealing. The proposed sealing is narrowly tailored and there is no less restrictive means to protect the privacy interest. Absent sealing, the private information would be publicly available.
12/02/2019 Proposed Order Received

Proposed Order Received GRANTING PETITION RE CONFISCATED FIREARMS AND AMMUNITIONS; SENT TO DEPT 1

Comment
GRANTING PETITION RE CONFISCATED FIREARMS AND AMMUNITIONS; SENT TO DEPT 1
12/02/2019 Proposed Order Received

Proposed Order Received ORDER AFTER HEARING; SENT TO DEPT 1

Comment
ORDER AFTER HEARING; SENT TO DEPT 1
12/05/2019 Order

Order Type: GRANTING PETITION RE FIREARMS Signed by: JUDGE DAVIS Date Signed: 12/5/19

Comment
Type: GRANTING PETITION RE FIREARMS Signed by: JUDGE DAVIS Date Signed: 12/5/19
12/05/2019 Order

Order Type: GRANTING MOTION TO SEAL Signed by: JUDGE DAVIS Date Signed: 12/5/19

Comment
Type: GRANTING MOTION TO SEAL Signed by: JUDGE DAVIS Date Signed: 12/5/19

Filed 1/17/20 P. v. Burts CA5

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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFERY TODD BURTS,

Defendant and Appellant.

F077149

(Super. Ct. No. F17906674)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge.

C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Effective January 1, 2019, Senate Bill No. 1393 amended Penal Code sections 667, former subdivision (a)(1), and 1385, former subdivision (b), and granted trial courts the discretion to strike the previously mandatory five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1). (Stats. 2018, ch. 1013, §§ 1, 2 (Senate Bill No. 1393 or Sen. Bill No. 1393).) Defendant Jeffery Todd Burts, who was convicted by plea and sentenced to a stipulated term that included the then-mandatory five-year enhancement under section 667, former subdivision (a)(1), requests remand to allow the trial court to exercise its discretion to strike the prior serious felony enhancement under Senate Bill No. 1393.

The People concede Senate Bill No. 1393 applies retroactively to this case, but contend remand for resentencing is unnecessary because by accepting the plea agreement and imposing the stipulated sentence, the trial court gave clear indication that it would not have exercised its discretion to strike the enhancement.

Under California law, the parties’ plea bargain is not insulated from retroactive changes in the law. (§ 1016.8; Doe v. Harris (2013) 57 Cal.4th 64, 73–74 (Doe); accord, Harris v. Superior Court (2016) 1 Cal.5th 984, 990–991 (Harris).) In light of the change in the law that occurred after defendant was sentenced, we reject the People’s contention that remand under Senate Bill No. 1393 is unnecessary and, in accordance with this court’s recent decision in People v. Ellis (Dec. 24, 2019, F076421) ___ Cal.App.5th ___ [2019 Cal.App. Lexis 1296] (Ellis), we remand this matter to allow defendant to seek relief under Senate Bill No. 1393. The judgment is otherwise affirmed.

PROCEDURAL HISTORY

The charges in this case arose from an incident of domestic violence followed by defendant’s subsequent violation of a restraining order five months later. Defendant was charged by amended information with the following five felonies: infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)) (count 1), making criminal threats (§ 422) (count 2), dissuading a witness (§ 136.1, subd. (b)(2)) (count 3), contempt of court (§ 166, subd. (c)(1)) (count 4), and resisting a peace officer (§ 148, subd. (a)(1)) (count 5). In addition, the amended information alleged a prior serious felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), a prior serious felony conviction enhancement (§ 667, subd. (a)(1)), and two prior prison term enhancements (§ 667.5, subd. (b)).

Pursuant to a negotiated plea bargain, defendant pled no contest to making criminal threats (count 2), and he admitted the prior strike conviction and the prior serious felony conviction enhancement. The remaining counts and the prior prison term enhancement allegations were dismissed, and the trial court sentenced defendant to the middle term of two years, doubled for the prior strike conviction, plus an additional five years for the prior serious felony conviction enhancement, for a total determinate term of nine years.

DISCUSSION

I. Certificate of Probable Cause Requirement

A. Background

Before turning to the issue on appeal, we first address a threshold matter not raised by the parties. “The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.” (People v. Loper (2015) 60 Cal.4th 1155, 1159; accord, People v. Arriaga (2014) 58 Cal.4th 950, 958; People v. Totari (2002) 28 Cal.4th 876, 881.) “In general, [however,] a defendant may appeal from a final judgment of conviction, unless otherwise limited by sections 1237.1 and 1237.5. (§ 1237; see Cal. Rules of Court, rule 8.304(b) .…) Section 1237.5, which is at issue here, provides in full: ‘No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.’ (Italics added.) The purpose of section 1237.5 is ‘to weed out frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and judicial resources are wasted.’” (People v. Maultsby (2012) 53 Cal.4th 296, 298–299, quoting People v. Buttram (2003) 30 Cal.4th 773, 790; accord, People v. Panizzon (1996) 13 Cal.4th 68, 75–76.) Thus, when a defendant pleads guilty or no contest, as here, absent a certificate of probable cause, “appellate review is [generally] limited to issues that concern the ‘jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea.’” (In re Chavez (2003) 30 Cal.4th 643, 649, fn. omitted; accord, People v. Maultsby, supra, at pp. 302–303; see People v. Shelton (2006) 37 Cal.4th 759, 766.)

There is presently a split of authority regarding whether a defendant who pled guilty or no contest under a plea agreement that included a stipulated sentence may proceed with his or her appeal of an issue arising from a retroactive change in the law in the absence of a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B).) In People v. Hurlic (2018) 25 Cal.App.5th 50, 57 (Hurlic), People v. Baldivia (2018) 28 Cal.App.5th 1071, 1079 (Baldivia), and Stamps, supra, 34 Cal.App.5th at page 121, review granted, the Courts of Appeal concluded that because plea agreements are not insulated from retroactive changes in the law under the general rule articulated by the California Supreme Court in Doe, supra, 57 Cal.4th at pages 73–74 and Harris, supra, 1 Cal.5th at pages 990–991, a defendant’s request for relief based on a retroactive change in the law is not an attack on the validity of the plea and, therefore, a certificate of probable cause is not required.

Collectively, the Courts of Appeal in Kelly, supra, 32 Cal.App.5th at page 1018, review granted; People v. Fox (2019) 34 Cal.App.5th 1124, 1139, review granted July 31, 2019, No. S256298 (Fox); People v. Galindo (2019) 35 Cal.App.5th 658, 673, review granted August 28, 2019, No. S256568 (Galindo); and People v. Williams (2019) 37 Cal.App.5th 602, 606, review granted September 25, 2019, No. S257538 (Williams), stand for the proposition that defendants who pled guilty or no contest pursuant to a plea agreement that included a stipulated sentence must still obtain a certificate of probable cause to seek relief on direct appeal under Senate Bill No. 1393 or Senate Bill No. 620.

B. Doe/Harris Rule Applies

We agree with the Hurlic line of cases. As addressed in part II. of the Discussion, there is no dispute that Senate Bill No. 1393 applies retroactively to this case. Given that defendant was convicted by plea, we must view his request to avail himself of the ameliorative change in the law through the lens of Doe and Harris.

In Doe, the California Supreme Court explained, “[T]he general rule in California is that a plea agreement is ‘“deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy.…”’ [Citation.] It follows, also as a general rule, that requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law.” (Doe, supra, 57 Cal.4th at pp. 73–74; accord, Harris, supra, 1 Cal.5th at pp. 990–991.)

Although this case does not involve a claim that defendant waived his right to appeal, the Legislature recently expressly relied, in part, on the rule in Doe when it added section 1016.8 to the Penal Code effective January 1, 2020. (Assem. Bill No. 1618 (2019-2020 Reg. Sess.) ch. 586, § 1.) Subdivision (b) of section 1016.8 provides: “A provision of a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy.”

Despite agreeing that Senate Bills Nos. 620 and 1393 apply retroactively to judgments not yet final on appeal, the Fox line of cases distinguishes Doe and Harris, and reasons that the Legislature did not intend for those changes in the law, which are discretionary in nature, to apply to plea bargains resulting in stipulated sentences. (Fox, supra, 34 Cal.App.5th at pp. 1136–1137, review granted; accord, Galindo, supra, 35 Cal.App.5th at pp. 664 & 670–671, review granted; Williams, supra, 37 Cal.App.5th at pp. 604–605, review granted; see People v. Alexander (2019) 36 Cal.App.5th 827, 844–846 (conc. & dis. opn. of Needham, J.), review granted Oct. 16, 2019, No. S257190.) We disagree.

The text of Senate Bill No. 1393 contains no such limitation. Nothing in the plain language of Senate Bill No. 1393 or the legislative history suggests the change in the law applies to only certain convictions.

In Ellis, we stated, “As the Court of Appeal pointed out in Baldivia, supra, 28 Cal.App.5th at page 1077, most cases are resolved by plea bargain and we are unpersuaded by the proposition advanced in Fox, Galindo and Williams that those who pled guilty or no contest in exchange for a stipulated sentence are categorically excluded from seeking relief under Senate Bill No. 620 or Senate Bill No. 1393, despite the absence of any dispute that under the rule in [In re] Estrada [(1965) 63 Cal.2d 740, 745 (Estrada)], Senate Bill No. 620 and Senate Bill No. 1393 apply retroactively to all cases in which judgment is not yet final on appeal. (Fox, supra, 34 Cal.App.5th at pp. 1135–1136, review granted; accord, Galindo, supra, 35 Cal.App.5th at pp. 671–672, review granted; Williams, supra, 37 Cal.App.5th at p. 605, review granted; see People v. Alexander, supra, 36 Cal.App.5th at p. 845 (dis. opn. of Needham, J.), review granted.)” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p. *26].)

“Although the changes in the law underlying the appeals in Doe and Harris are distinguishable in some respects from the change in the law at issue here, … neither Doe nor Harris speaks to any limitation of the general rule that may be reasonably interpreted as excluding its application here, where the Estrada rule applies and therefore, the retroactive amendments are to be extended as broadly as possible.” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at pp. *26–27].) “Notably, the Legislature codified the holding in Doe when it recently acted to make clear that parties to a plea bargain may not insulate that bargain from future ameliorative changes in the law that may apply and any such provision is void as against public policy.” (Id. at p. ___ [2019 Cal.App. Lexis 1296 at p. *27], citing § 1018.6, subds. (a)(1), (b).)

C. Conclusion

When the parties in this case reached the plea agreement that was approved by the trial court, imposition of the five-year prior serious felony conviction enhancement was mandatory. “The state of the law then in effect necessarily informed the parties’ negotiations, just as it informed the court’s subsequent consideration and approval of the agreed upon plea bargain.” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p.*27].) As discussed in Ellis, “Senate Bill No. 1393 does not entitle defendants who negotiated stipulated sentences ‘to whittle down the sentence “but otherwise leave the plea bargain intact”’ (Kelly, supra, 32 Cal.App.5th at p. 1018, review granted, quoting People v. Collins (1978) 21 Cal.3d 208, 215; accord, Fox, supra, 34 Cal.App.5th at p. 1138, review granted; Galindo, supra, 35 Cal.App.5th at p. 673, review granted), but we part company with Fox and other analogous cases because, in our view, application of the Estrada and Doe/Harris rules to Senate Bill No. 1393 compels the conclusion that [the] defendant is entitled to seek the benefit of change in the law.” (Id. at pp. ___ [2019 Cal.App. Lexis at pp. *27–28].)

“[T]he trial court’s authority under Senate Bill No. 1393 is discretionary and is confined to those instances in which the court determines that it is ‘in the furtherance of justice’ to exercise discretion. (§ 1385, subd. (b)(1).) In many cases, the trial court may simply decline to exercise its discretion to strike the enhancement and that will end the matter. [¶] In other cases, the trial court might conclude, upon the defendant’s request, that it is in the interest of justice to strike the enhancement.” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p *28].)

In the latter instance, the trial court’s decision is not without attendant consequences, as “‘in the context of a negotiated plea the trial court may approve or reject the parties’ agreement, but the court may not attempt to secure such a plea by stepping into the role of the prosecutor, nor may the court effectively withdraw its approval by later modifying the terms of the agreement it had approved.’” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p. *28], quoting People v. Segura (2008) 44 Cal.4th 921, 931–932; accord, K.R. v. Superior Court (2017) 3 Cal.5th 295, 303–304; People v. Martin (2010) 51 Cal.4th 75, 79; see §§ 1018, 1192.5.) “Given that defendants in criminal cases presumably obtained some benefit from the plea agreement, we anticipate that there will be defendants who determine that, notwithstanding their entitlement to seek relief based on the change in the law, their interests are better served by preserving the status quo. That determination, however, lies in each instance with the defendant.” (Ellis, supra, at pp. ___ [2019 Cal.App. Lexis 1296 at pp. *29–30.)

In sum, “while [the] defendant did not obtain a certificate of probable cause in this case, the issue he now advances arises from a retroactive change in the law effected well after the trial court took his plea and sentenced him. Rather than attempting to attack the validity of his plea, he is attempting to seek relief under a retroactive change in the law that he could not have foreseen at the time and that his plea agreement is deemed to have incorporated and contemplated. (Doe, supra, 57 Cal.4th at pp. 73–74.) Under these circumstances, we agree with the Baldivia court that the first ground articulated in Hurlic—application of the rule in Doe and Harris—is dispositive (Baldivia, supra, 28 Cal.App.5th at p. 1077), and conclude that [the] defendant was not required to obtain a certificate of probable cause to request relief pursuant to Senate Bill No. 1393 (Hurlic, supra, 25 Cal.App.5th at pp. 55–57; accord, Baldivia, supra, at pp. 1077–1079; Stamps, supra, 34 Cal.App.5th at pp. 122–123, review granted).” (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p. *30].)

II. Senate Bill No. 1393 is Retroactive

Turning to the issue raised by the parties, “we presume that newly enacted legislation mitigating criminal punishment reflects a determination that the ‘former penalty was too severe’ and that the ameliorative changes are intended to ‘apply to every case to which it constitutionally could apply,’ which would include those ‘acts committed before its passage[,] provided the judgment convicting the defendant of the act is not final.’ (Estrada, supra, 63 Cal.2d at p. 745.) The Estrada rule rests on the presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, ‘a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’” (People v. Buycks (2018) 5 Cal.5th 857, 881–882, italics added; accord, People v. Valenzuela (2019) 7 Cal.5th 415, 428; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307–308.)

Courts of Appeal considering Senate Bill No. 1393 and, in an analogous context, Senate Bill No. 620 have uniformly held that the changes apply retroactively to judgments not yet final on appeal. (E.g., People v. Zamora (2019) 35 Cal.App.5th 200, 207–208 [Sen. Bills Nos. 602 & 1393]; People v. Garcia (2018) 28 Cal.App.5th 961, 972–973 [Sen. Bill No. 1393]; People v. Chavez (2018) 22 Cal.App.5th 663, 711–712 [Sen. Bill No. 620]; People v. Arredondo (2018) 21 Cal.App.5th 493, 506–507 [Sen. Bill No. 620].) The People concede the point and we agree. As Senate Bill No. 1393 does not contain a savings clause and there is no indication that the Legislature intended any limitation on its retroactive application, it applies to this case in accordance with the Estrada rule.

III. Remand is Appropriate

“‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.’ [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Johnson (2019) 32 Cal.App.5th 26, 69; People v. Garcia, supra, 28 Cal.App.5th at p. 973; People v. Almanza (2018) 24 Cal.App.5th 1104, 1109–1111; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081–1082; People v. McDaniels (2018) 22 Cal.App.5th 420, 427–428; cf. People v. Wilson (2019) 42 Cal.App.5th 408, 415 [no entitlement to remand where the defendant, facing multiple life terms & additional decades in prison, accepted offer of 17 years in prison after the prosecutor was able to better the pre-preliminary hearing offer of 21 years, where such step was procedurally unusual & required consultation with the victim, investigating officer & two people within the prosecutor’s office]; People v. Allison (2019) 39 Cal.App.5th 688, 705–706 [remand under Sen. Bill No. 620 unnecessary where trial court resentenced the defendant on remand in 2017, & court & parties focused on determining the maximum lawful sentence with goal of coming as close as possible to 51-year sentence originally imposed]; People v. Jones (2019) 32 Cal.App.5th 267, 274 [remand unnecessary where record clear trial court would not exercise discretion to strike enhancement under Sen. Bill No. 1393]; People v. McVey (2018) 24 Cal.App.5th 405, 419 [record clear trial court would not exercise discretion to strike enhancement under Sen. Bill No. 620].)

The parties agreed to a sentence of nine years, which the trial court imposed. We agree that if the court were to strike or dismiss the enhancement, or stay the sentence on the enhancement, defendant’s sentence would be reduced significantly, indicating consequences attendant to defendant’s request for the court to exercise its discretion under Senate Bill No. 1393. (Ellis, supra, ___ Cal.App.5th at p. ___ [2019 Cal.App. Lexis 1296 at p. *32]; see § 1018; People v. Martin, supra, 51 Cal.4th at pp. 79–81; People v. Segura, supra, 44 Cal.4th at pp. 930–932.) “However, the record does not clearly demonstrate that remand would be futile (cf. People v. Wilson, supra, 42 Cal.App.5th at p. 415; People v. Allison, supra, 39 Cal.App.5th at pp. 705–706; People v. Jones, supra, 32 Cal.App.5th at p. 274; People v. McVey, supra, 24 Cal.App.5th at p. 419), and the parties’ plea bargain is not insulated from the changes in the law effected by Senate Bill No. 1393 (Doe, supra, 57 Cal.4th at pp. 73–74; Harris, supra, 1 Cal.5th at pp. 990–991).” (Ellis, supra, at p. ___ [2019 Cal.App. Lexis 1296 at p. *32].) As set forth in Ellis, “[u]nder the circumstances presented here, if we were to decline to remand this matter based on our view of the likelihood or unlikelihood of the trial court exercising its discretion to strike the enhancement, we would be effectively insulating the agreement from retroactive changes in the law, in contravention of the law. (§ 1016.8, subd. (b), eff. Jan. 1, 2020; Doe, supra, at pp. 73–74; Harris, supra, at pp. 990–991.) Therefore, [the] defendant is entitled to a limited remand to allow him the opportunity to request relief under Senate Bill No. 1393.” (Id. at p. ___ [2019 Cal.App. Lexis 1296 at pp. *32–33].)

DISPOSITION

This matter is remanded for the limited purpose of allowing defendant an opportunity to request relief under Senate Bill No. 1393. The judgment is otherwise affirmed.

Filed 1/17/20 P. v. Saucedo 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.

FERNANDO A. SAUCEDO,

Defendant and Appellant.

E070686

(Super.Ct.No. 16CR005358)

TENTATIVE OPINION

APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed as modified with directions.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Warren Williams and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

A jury convicted defendant and appellant Fernando A. Saucedo of one count of robbery (Pen. Code, § 211, count 1); one count of making criminal threats (§ 422, count 2); two counts of assault with a firearm (§ 245, subd. (a)(2), counts 3 & 4); and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1), count 5). The jury also found true that defendant personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)) in the commission of counts 1 through 4. In a bifurcated proceeding, defendant admitted that he had suffered one prior serious or violent felony strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)), and one prior prison term (§ 667.5, subd. (b)). The remaining prior prison term enhancements were stricken.

After denying defendant’s motion to dismiss the prior strike conviction, the trial court sentenced defendant to a total term of 35 years eight months in state prison with 936 days’ credit for time served as follows: an aggravated five-year term on count 1, which was doubled to 10 years due to the prior strike, plus 10 years for the firearm use enhancement; a consecutive 16 months on count 2, plus 16 months for the firearm use enhancement; a consecutive two years on count 3, plus 16 months for the firearm use enhancement; a consecutive two years on count 4, plus 16 months for the firearm use enhancement; a consecutive 16 months on count 5; plus a consecutive five years for the prior serious felony conviction. The prior prison term enhancement was stayed.

On appeal, defendant contends: (1) his sentence on count 2 for making a criminal threat should be stayed pursuant to section 654 because those offenses were committed with the same intent and objective as count 3; (2) in light of Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2, eff. Jan. 1, 2019), the matter must be remanded to allow the trial court to exercise its discretion to strike the five-year enhancement for the prior serious felony conviction; and (3) imposing the $5,000 restitution fine without a determination of his ability to pay violated his due process right under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).

We agree with the parties that the trial court should have stayed his sentence for making criminal threats under section 654, and we also agree that he is entitled to remand so the court may exercise its discretion in the first instance with respect to whether to strike or dismiss the prior serious felony conviction enhancement. With respect to Dueñas, we conclude that defendant has forfeited the argument. As modified, we affirm the judgment.

II

FACTUAL BACKGROUND

A. Count 1 (Robbery)

On March 17, 2016, at about 2:45 p.m., defendant approached a parked United Parcel Service (UPS) truck, pointed a gun at the driver, and demanded jewelry. The driver did not have any jewelry, so he directed defendant to several boxes containing new cell phones. Defendant took the boxes containing cell phones, as well as another random package, and fled.

A video of the incident was recovered from a surveillance camera at a nearby liquor store. The video showed that the incident occurred at 2:40 p.m. and lasted less than a minute. The UPS driver was unable to identify defendant during an in-field lineup. However, the UPS driver was later shown a T-shirt with a “Superman” logo, which he identified as the shirt the suspect wore at the time of the robbery.

B. Counts 2 (Criminal Threat) and 3 (Assault with a Firearm on Matthew N.)

A short time later, after 2:45 p.m. on March 17, 2016, Matthew N. was with his wife and his son at a dog park. Matthew and his family were planning to paint a “snack shack” for the baseball team and were waiting in their car in the parking lot. A white Mercedes pulled into the parking lot and someone began throwing white boxes out of the window. Matthew’s wife yelled that the person should throw the trash in a dumpster, which stood only a few feet away.

Defendant exited from the passenger side of the car and began walking aggressively toward Matthew, who was now standing outside next to his vehicle. Defendant pointed a gun at Matthew’s head and then at Matthew’s stomach area, and said several times, “I’m going to f[]ing kill you,” and “What the f[] are you going to do?” When defendant pointed the gun at Matthew’s stomach, defendant continued to yell, “Do you want me to kill you?”

Matthew’s son witnessed the incident and called the police. After Matthew’s son stated that he had called the police, defendant got back into the white Mercedes and the car quickly drove off. Matthew noted the license plate number of the white Mercedes. The entire confrontation lasted about four or five minutes. When asked to view a suspect during an in-field lineup about two hours later, both Matthew and his wife identified defendant. Matthew also recognized defendant’s clothing and the gun used during the incident. Matthew identified defendant as the suspect with certainty. Defendant was wearing dark-colored shorts, a blue T-shirt with a “Superman” logo, and a blue “Boston” hat.

C. Counts 6 (Assault on Alfonso K.) and 7 (Felon in Possession of Firearm)

Around two hours later, sometime after 5:00 p.m. on March 17, 2016, Alfonso K. and his wife were driving to a pharmacy. Alfonso was waiting for cross traffic to clear before turning into the parking lot. A male, later identified as defendant, wearing a blue “Superman” T-shirt was sitting on the curb. Defendant was yelling at Alfonso to, “Go, go.” As Alfonso looked at him, defendant said, “What are you looking at?” Alfonso responded, “I’ll be back,” intending to go back and ask defendant what his problem was. Defendant replied, “Oh yeah?” and reached over with his right hand to his hip area. Defendant then pulled out a gun and fired one round at Alfonso. Alfonso estimated that defendant was about 30 feet away from his car.

Alfonso accelerated through the parking lot to the pharmacy and called the police. Alfonso described the suspect. A police officer responded to the scene and saw defendant walking on a nearby street wearing a blue baseball cap, blue jean shorts with no shirt, and socks and tennis shoes. Defendant had a blue T-shirt tucked under his right arm. When the officer approached him, defendant dropped the blue T-shirt in a grass planter area. Defendant was apprehended a few minutes later. Later that day, Alfonso identified defendant as the person who shot at him.

When assisting officers arrived, an officer picked up the blue T-shirt, which he noticed had a “Superman” logo. The officer also recovered another T-shirt, which was long-sleeved and white, and a black .38-caliber revolver. The revolver was wrapped in the T-shirts. The revolver contained five rounds, three of which were live, and two of which had been fired, with only the empty casings remaining in the chamber. It could not be determined when the expended casings were fired.

III

DISCUSSION

A. Section 654

Defendant contends that imposition of consecutive terms on counts 2 and 3 for making criminal threats and assault with a firearm against Matthew violated section 654, because those offenses were part of the same continuous course of conduct and were committed with the same intent and objective, namely, to cause the victim sustained fear by threatening his life. The People concede that defendant had a single intent and objective when he committed both offenses, and therefore concede count 2 and the accompanying firearm use enhancement must be stayed. We agree.

The probation officer recommended consecutive sentences for making the criminal threat offense in count 2 and the assault with a firearm offense in count 3 based on defendant’s separate acts of placing the gun against Matthew’s head while threatening to kill him, and then placing the gun toward his stomach area while again threatening to kill him. Although the probation officer recognized that the two acts were closely related in time and place, the officer nonetheless concluded consecutive sentences were appropriate, because defendant brandished the firearm while threatening the victim to induce more fear, and the acts were separated by enough time to enable defendant to walk away after the first threat.

At sentencing, defense counsel asked the court not to impose punishment for both count 2 and count 3, because both crimes were part of a single, indivisible course of conduct under section 654. The prosecutor responded that defendant committed separate acts by pointing the gun at the victim’s forehead and stomach while threatening him, and that the crimes had different elements. The trial court agreed that counts 2 and 3 were based on separate acts with separate elements and therefore declined to find section 654 applied.

Section 654 provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) Hence, section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Corpening (2016) 2 Cal.5th 307, 311; People v. Latimer (1993) 5 Cal.4th 1203, 1216; People v. Harrison (1989) 48 Cal.3d 321, 335.)

“ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ ” (People v. Latimer, supra, 5 Cal.4th at p. 1208.) On the other hand, if the defendant entertained multiple criminal objectives that were independent and not incidental to each other, he or she “may be punished for each statutory violation committed in pursuit of each objective,” even though the violations were otherwise part of an indivisible course of conduct. (People v. Harrison, supra, 48 Cal.3d at p. 335.)

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Ibid.; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; see People v. Cleveland (2001) 87 Cal.App.4th 263, 271 [trial court’s finding of “ ‘separate intents’ ” reviewed for sufficient evidence in light most favorable to the judgment].)

In People v. Mendoza (1997) 59 Cal.App.4th 1333, superseded by statute on other grounds as stated in People v. Franz (2001) 88 Cal.App.4th 1426, 1442, the defendant was convicted both of making a criminal threat and of dissuading a witness by force, or by express or implied threat of force or violence. (Id. at p. 1345.) On appeal, the court stayed the criminal threat conviction pursuant to section 654. The court reasoned the threat to kill the victim was made to dissuade her from testifying. (Mendoza, at p. 1346.)

Here, there is no evidence to suggest defendant had separate intents and objectives when he pointed the gun and made threats to kill Matthew. In both instances, defendant intended to place Matthew in fear for his life. Further, the two acts were indivisible in time. The assault with a firearm was committed at the same time as making the criminal threats. Defendant pointed the gun at Matthew while making his criminal threats. Moreover, in closing argument, the prosecutor treated the two crimes as occurring simultaneously, and in discussing the criminal threat charge, the prosecutor relied heavily on the use of the gun: “The threat, what is the threat in this case? ‘I’m going to f[]ing kill you.’ That’s what he said repeatedly to [Matthew], ‘I’m going to f[]ing kill you.’ [¶] Was the threat made orally? Yes. It was made orally to [Matthew]. He yelled and screamed at [Matthew] while pointing a gun at [Matthew]. He did that repeatedly. Now, did he intend the statement to be understood as a threat? Okay. At the conduct when he was making that threat, he was pointing a gun at [Matthew]’s forehead and pointing a gun at his stomach area. He intended that statement to be a threat.”

We conclude that there is insufficient evidence to support the trial court’s ruling that the crimes are separate and distinct. Both crimes were committed with the same intent and objective of terrorizing Matthew in the dog park parking lot.

Accordingly, the 16-month sentence imposed for making a criminal threat and the attendant 16-month sentence for the firearm use enhancement must be stayed under section 654. (See People v. Butler (1996) 43 Cal.App.4th 1224, 1248 [“Where multiple punishment has been improperly imposed, ‘. . . the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term.’ ”].)

B. Senate Bill No. 1393

At the time of defendant’s sentencing on June 8, 2018, the trial court was required to impose the five-year enhancement under section 667, former subdivision (a)(1), based on defendant’s prior serious felony conviction. However, effective January 1, 2019, section 667, subdivision (a)(1), and section 1385 were amended to permit a trial court, in the furtherance of justice, to strike or dismiss a five-year enhancement under section 667, subdivision (a)(1). (Sen. Bill No. 1393, ch. 1013, §§ 1, 2.)

Defendant contends that in light of Senate Bill No. 1393’s amendment to section 1385, the matter must be remanded to the court to permit it to exercise its discretion as to whether his prior serious felony conviction enhancements should be stricken. The parties agree that the statutory amendments apply retroactively in this case. (People v. Jimenez (2019) 32 Cal.App.5th 409, 426; People v. Garcia (2018) 28 Cal.App.5th 961, 971-973; People v. McDaniels (2018) 22 Cal.App.5th 420, 424-425 (McDaniels).) The focus of their disagreement is whether remand for resentencing is required.

The People contend that remand is not required because it is clear from the sentencing record that the trial court would not have exercised its discretion to strike the prior serious felony conviction enhancement. In support of this argument, they rely on the trial court’s denial of defendant’s invitation to strike his prior serious or violent felony strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and its selection of the aggravated term on count 1 for robbery and imposition of consecutive terms on all of the counts and firearm enhancement. The People also point out that the court found no circumstances in mitigation, and it identified multiple circumstances in aggravation, such as defendant’s threat of great bodily harm, his violent conduct revealed a serious danger to society, his numerous prior convictions, his having served prior prison terms, and his unsatisfactory performance on parole. Further, the court commented that it found no unusual circumstances that would justify a grant of probation in this case.

In support of their argument that remand is not necessary in this instance, the People cite McDaniels, supra, 22 Cal.App.5th 420 and People v. Jones (2019) 32 Cal.App.5th 267 (Jones), for the proposition that remand is not required where “the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement.” (McDaniels, at p. 425.) As discussed in the decision, the relevant proposition was articulated by the Court of Appeal in People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896, in which the court was tasked with determining whether reconsideration of sentencing was required after the California Supreme Court held in Romero, supra, 13 Cal.4th 497 that trial courts have the discretion to strike prior convictions.

The defendant in Gutierrez was 34 years old, and he attacked two men who were at least 30 years older than he was, resulting in convictions for robbery and attempted robbery. (People v. Gutierrez, supra, 48 Cal.App.4th at p. 1896.) The trial court imposed a total aggregate sentence of 18 years four months and, during sentencing, the court stated the defendant “was ‘clearly engaged in a pattern of violent conduct, which indicates he is a serious danger to society.’ ” (Ibid.) Further, in the context of deciding whether to impose two one-year enhancements under section 667.5, former subdivision (b), the trial court stated, “ ‘[T]here really isn’t any good cause to strike it. There are a lot of reasons not to, and this is the kind of individual the law was intended to keep off the street as long as possible.’ ” (Gutierrez, at p. 1896.)

In Jones, supra, 32 Cal.App.5th 267, the defendant was convicted of premeditated attempted murder, assault with a deadly weapon, and assault by means of force likely to produce great bodily injury. (Id. at p. 271.) It was also found true that the defendant personally inflicted great bodily injury and personally used a deadly weapon. (Ibid.) In addition, the trial court found that the defendant sustained a prior serious felony conviction and a prior strike conviction for attempted voluntary manslaughter. (Ibid.) The trial court sentenced the defendant to 22 years plus a consecutive 14 years to life in state prison. (Ibid.)

In sentencing the defendant, the trial court stated, “ ‘I’ve already, I guess, sort of spoken my sense of this case in my ruling on the new trial motion. This gives me obviously, as you know, great satisfaction in imposing the very lengthy sentence here today.’ ” (Jones, supra, 32 Cal.App.5th at p. 274.) The court also noted that, “notwithstanding [the] defendant’s genial conduct during court proceedings, his actions had displayed a ‘temper’ that was ‘oftentimes triggered by drinking,’ along with ‘a [penchant] to use knives, apparently.’ ” (Ibid.) The court further stated the defendant had “ ‘earned the sentence here today.’ ” (Ibid.) In addition, the court explained there was “ ‘no shortage’ ” of aggravating factors that supported the upper term, but one factor “ ‘certainly to include [was] this case did involve planning and sophistication and there was violent conduct involved and the Defendant . . . has served a prior prison term.’ ” (Ibid.)

The defendant appealed, and in part, requested a remand for resentencing on his prior serious felony conviction pursuant to Senate Bill No. 1393. (Jones, supra, 32 Cal.App.5th at p. 269.) The Court of Appeal found remand to reconsider the prior serious felony conviction was unnecessary. In rejecting the defendant’s request for a remand, the court noted the trial court’s comments upon sentencing the defendant and also explained: “Reviewing the evidence in the record, we conclude there is no possibility the trial court would strike the enhancement were we to remand. At sentencing, the court first denied [the] defendant’s motion for new trial. Independently reviewing the evidence, the court felt ‘very comfortable denying the motion for new trial [and] very comfortable with the verdict . . . including that the defendant had adequate time to premeditate the attempted murder of Mr. Stowers.’ The evidence showed [the] defendant ‘was doing his reconnaissance and essentially laying [sic] in wait. . . .’ [¶] [The d]efendant’s behavior after Stowers threw him down was ‘rage, and he did not like what Mr. Stowers had done unto him and was going to make that clear under whatever circumstances that might be including, incredibly, chasing him out into oncoming traffic on J Street that night, dodging in and out of cars . . . and then not giving up. . . .’ There was no question that after cornering Stowers, [the] defendant stabbed him. [¶] The [trial] court found [the] defendant had ‘ample opportunities . . . to reflect on how far was he going to take this when it came to Mr. Stowers. Well, you take it all the way. Incredibly. Senselessly. [¶] This whole case just shows the absurdity of what’s deemed to be at times acceptable societal behavior over something as ridiculous as to the caliber of a Long Island Iced Tea drink. That’s what brought us here today.’ [¶] During sentencing, the prosecutor explained the facts of the felony prior. [The d]efendant was convicted of attempted manslaughter for stabbing his ex-wife numerous times. [The d]efendant served 10 years in prison for that conviction and had been released only for a few months when he stabbed Stowers. [The d]efendant did not know any of the individuals at the bar before he attacked.” (Id. at pp. 273-274.)

In this case, in contrast, the trial court made no comments regarding the facts underlying the offenses or when it imposed the prior serious felony conviction enhancement or its opinion about the severity of the sentence it intended to impose. To the contrary, the court indicated it was going to exercise its discretion to modify the sentence downward from that recommended by the probation officer and the prosecutor, who both recommended 41 years eight months. In this regard, the court did not impose the longest possible sentence. Instead, as to each of the firearm enhancements attached to counts 2 through 4, it imposed only midterm sentences. Moreover, the California Supreme Court has reiterated that “ ‘[d]efendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.’ [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).)

Post-Gutierrez, most of the published cases considering whether remand is appropriate to allow the trial court to exercise its discretion in the first instance have concluded that remand is appropriate, including McDaniels, cited by the People. (People v. Johnson (2019) 32 Cal.App.5th 26, 69 [Sen. Bills Nos. 1393 & 620]; Garcia, supra, 28 Cal.App.5th at p. 973 [Sen. Bill No. 1393]; People v. Almanza (2018) 24 Cal.App.5th 1104, 1109-1111 [Sen. Bill No. 620 applying to firearm enhancement]; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082 [Sen. Bill No. 620]; McDaniels, supra, 22 Cal.App.5th at pp. 427-428 [Sen. Bill No. 620].) Indeed, recently this court in People v. Zamora (2019) 35 Cal.App.5th 200, remanded the matter for resentencing under Senate Bills Nos. 620 and 1393 to permit the trial court to exercise its newly granted discretion as to whether to strike the firearm enhancements and to strike or dismiss the remaining serious felony conviction enhancements, despite the trial court having sentenced the defendant to 20 years, plus 100 years to life. (Zamora, at pp. 203, 208-209.)

We do not minimize defendant’s crimes in this case. We also recognize that the trial court rejected defendant’s invitation to strike his prior strike conviction under Romero, found no mitigating factors but numerous aggravating factors, commented that there were no unusual circumstances to justify a grant of probation, and elected to impose the upper term on count 1 in sentencing defendant. The record in this case, however, unlike in Jones, does not contain pointed comments regarding the facts underlying the offenses, defendant’s characteristics, or the prior serious felony conviction enhancement. In addition, the record before us does not reflect the trial court knew it had discretion to strike defendant’s prior serious felony enhancement; nor does it reflect a clear indication by the trial court that it would not have struck the enhancement if it had discretion to do so. As such, we decline to speculate on what the trial court might do on remand in the absence of such express indication in the record.

Notably, in People v. Almanza, the Court of Appeal initially affirmed judgment and declined to remand the matter to the trial court in light of Senate Bill No. 620. It then granted rehearing, concluding, “We are persuaded . . . by McDaniels and defense counsel that speculation about what a trial court might do on remand is not ‘clearly indicated’ by considering only the original sentence. This is the case when there is a retroactive change in the law subsequent to the date of the original sentence that allows the trial court to exercise discretion it did not have at the time of sentence.” (People v. Almanza, supra, 24 Cal.App.5th at pp. 1110-1111.) We concur.

Although the record indicates the trial court was not sympathetic in this case, and for good reason; however, at the time defendant was sentenced, the court lacked the discretion to strike or stay the prior serious felony enhancement. Defendant is entitled to be sentenced in the exercise of informed discretion and remand is appropriate so that the trial court may exercise its discretion under the amendments to sections 667 and 1385. We express no opinion on how the trial court should exercise its discretion on remand. (McDaniels, supra, 22 Cal.App.5th at p. 428.)

C. Ability to Pay $5,000 Restitution Fine

Relying on Dueñas, supra, 30 Cal.App.5th 1157, defendant also asserts that imposing a restitution fine in the amount of $5,000 violated his right to due process of law. He thus contends that absent proof of his present ability to pay, the restitution fine should be stayed unless the People can show he has the present ability to pay the fine. Dueñas involved the plight of a married mother with cerebral palsy, whose family—which included two young children—was demonstrably unable to afford even basic necessities due to poverty. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas’s inability to pay several juvenile citations had resulted in suspension of her driver’s license, which then led to a series of misdemeanor convictions over the years for driving with a suspended license and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed, but nevertheless was sent to collections on other fees related to her court appearances. (Ibid.)

After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine—the minimum amount required under Penal Code section 1202.4, subdivision (b). The trial court rejected the defendant’s argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal reversed, holding that “the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution.” (Dueñas, at p. 1168.) The imposition of a minimum restitution fine without consideration of the defendant’s ability to pay also violated due process. (Id. at pp. 1169-1172.) The appellate court reversed the order imposing the assessments and directed the trial court to stay the execution of the restitution fine “unless and until the People prove that [the defendant] has the present ability to pay it.” (Id. at pp. 1172-1173.)

Here, the People contend that defendant forfeited any challenge to the restitution fine by failing to object or raise the issue below. This general rule is well-settled. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.) Defendant argues, however, that the forfeiture rule should not apply because his sentencing occurred prior to Dueñas, and any objection would therefore have been futile.

Courts have addressed similar arguments with varying results. In People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), Division Seven of the Second District held that the forfeiture rule did not apply to a defendant sentenced prior to Dueñas. (Id. at p. 489; accord, People v. Johnson (2019) 35 Cal.App.5th 134, 138 (Johnson).) The Castellano court explained that when the trial court sentenced the defendant, “Dueñas had not yet been decided; and no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant’s ability to pay. Moreover, none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court’s consideration of a defendant’s ability to pay. Indeed . . . in the case of the restitution fine, Penal Code section 1202.4, subdivision (c), expressly precluded consideration of the defendant’s inability to pay. When, as here, the defendant’s challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture.” (Castellano, at p. 489; see People v. Jones (2019) 36 Cal.App.5th 1028, 1033; see generally People v. Brooks (2017) 3 Cal.5th 1, 92 [“ ‘[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.’ ”].)

In People v. Frandsen (2019) 33 Cal.App.5th 1126, Division Eight of the Second District applied the forfeiture rule and disagreed with the defendant’s assertion that Dueñas constituted “ ‘a dramatic and unforeseen change in the law.’ ” (Id. at p. 1153; accord, People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.) In People v. Gutierrez (2019) 35 Cal.App.5th 1027, Division One of this court found “it unnecessary to address any perceived disagreement on the forfeiture issue,” explaining that both “Castellano and Johnson involved situations in which the trial court imposed the statutory minimum restitution fine.” (Id. at pp. 1032-1033.) In Gutierrez, as in Frandsen and unlike this case, “the trial court imposed the statutory maximum restitution fine.” (Id. at p. 1033.) The court here imposed a restitution fine in the amount of $5,000, above the statutory minimum. (§ 1202.4, subd. (b)(1).)

Castellano and other post-Dueñas cases that imposed minimum restitution fines are thus distinguishable from the instant case with regard to the issue of forfeiture because in those cases, the trial court imposed the minimum statutory restitution fine, whereas the restitution fine imposed in the instant case exceeded the minimum statutory fine. (See e.g., People v. Jones, supra, 36 Cal.App.5th at pp. 1029-1030 [trial court imposed a court operations fee of $70 and a $300 restitution fine; we found no forfeiture]; Castellano, supra, 33 Cal.App.5th at p. 489; Johnson, supra, 35 Cal.App.5th at pp. 137-138.) Section 1202.4, subdivision (c), states in relevant part: “The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b).” (Italics added.)

Subdivision (c) of section 1202.4 thus states the trial court is barred from considering the defendant’s inability to pay the minimum authorized restitution fines. But section 1202.4 does not preclude the trial court from considering ability to pay when imposing a restitution fine exceeding the statutorily authorized minimum amount. Dueñas, which involves imposition of the minimum statutory restitution fine, thus does not provide a newly announced constitutional principle applicable to cases involving imposition of restitution fines exceeding the statutory minimum. Therefore, because there would be no reason under section 1202.4 not to object based on inability to pay a restitution fine exceeding the statutory minimum, failure to object in the trial court forfeits the objection on appeal. As concluded in People v. Aviles, “[e]ven if Dueñas applied to this case, defendant forfeited his ability to pay challenge because he failed to object to the amounts imposed at the sentencing hearing.” (People v. Aviles (2019) 39 Cal.App.5th 1055, 1073, citing People v. Frandsen, supra, 33 Cal.App.5th at p. 1153; People v. Bipialaka, supra, 34 Cal.App.5th at p. 464.)

IV

DISPOSITION

The judgment is modified to stay the sentence imposed on count 2 for making criminal threats and its accompanying firearm use enhancement pursuant to section 654. The matter is also remanded to the trial court to exercise its discretion under sections 667, subdivision (a)(1), and 1385 as amended by Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2, eff. Jan. 1, 2019) and, if appropriate following exercise of that discretion, to resentence defendant accordingly. The trial court is directed to prepare an amended abstract of judgment reflecting the modification for the sentence on count 2 and its accompanying firearm enhancement, and modification, if any, of the sentence on the prior serious felony conviction enhancement, and to forward a certified copy to the Department of Corrections and Rehabilitation reflecting the modifications. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.

Filed 1/17/20 P. v. Wang 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.

HAOYU WANG,

Defendant and Appellant.

H044600

(Santa Clara County

Super. Ct. No. C1496361)

Defendant Haoyu Wang pleaded no contest to cruelty to animals (Pen. Code, § 597, subd. (b)). He contends: the trial court erred when it failed to grant his motion to withdraw his plea; and the probation condition authorizing the search of “any property under his control” violates the Fourth Amendment. We affirm the order.

I. Statement of the Case
II.
In October 2016, defendant was charged by information with cruelty to animals. On February 1, 2017, defendant pleaded no contest to the charge with “no promises or agreements about what sentence the court [would] order.” Prior to the sentencing hearing on February 27, 2017, defendant brought a motion to reduce the conviction to a misdemeanor pursuant to section 17. The trial court denied the motion. The trial court suspended imposition of sentence and placed defendant on probation subject to several conditions, including a general search condition.

In April 2017, defendant filed a motion to withdraw his plea. The trial court denied the motion.

III. Statement of Facts
IV.
In April 2014, defendant, who was intoxicated, threw a five-week-old puppy against a wall three times. The puppy suffered “a brain injury, specifically swelling to the brain, central blindness, pulmonary contusions, a partial collapsed lung, fluid in the lungs, a loose tooth, and hemorrhaging to the right eye.” The puppy eventually recovered, but “suffer[s] from anxiety, specifically when it pertains to men.”

III. Discussion

A. Motion to Withdraw Plea
B.
Defendant contends that the trial court erred when it withdrew its indicated sentence without giving him the opportunity to withdraw his plea.

1. Background
2.
On the same day that he entered his no contest plea, defendant signed an advisement of rights, waiver, and plea form. He acknowledged that he was pleading to felony animal cruelty. He also indicated that he understood that the maximum sentence for this offense exposed him to a sentence of three years. He left blank the portion of the form setting forth any sentencing agreements. Defendant further recognized that he was entering into an “Open Plea,” that is, he understood that no promises or agreements were made as to what sentence the court would impose and that the court was “not required to follow any tentative, indicated sentence.” Defendant did not check the box on the form which is applicable to pleas in which “the court has given a non-binding, tentative indicated sentence.”

At the change of plea hearing, the trial court stated: “So it is my understanding that the defendant will change his plea to Count 1 of the information to no contest. There are no conditions to the disposition. We will proceed to a sentencing hearing. I anticipate that at the time of the sentencing the defendant will make a request of the Court to reduce the charge to a misdemeanor violation and to sentence him for a misdemeanor. At that time the People will make their arguments regarding that request and also for appropriate sentencing as well.” The prosecutor also expressed her understanding that defendant was entering into “an open plea . . . .” Defense counsel indicated that she would “submit some written papers to the Court in advance of the sentencing date.” After defendant was advised of and waived his rights, he pleaded no contest to “a felony violation of . . . cruelty to animals.” At no time during the hearing did the trial court take a position on any sentence or on defendant’s anticipated motion to reduce the offense to a misdemeanor.

At the sentencing hearing, the trial court stated that defendant had requested reduction of the offense to a misdemeanor pursuant to section 17. The trial court noted that it had received defendant’s brief with attachments and the prosecution’s opposition to the motion. Following arguments by counsel, the trial court denied the motion.

Two months later, defendant filed a motion to withdraw his plea on the ground that he had entered his no contest plea as a result of mistake. He cited to an attached declaration from defense counsel. The declaration stated: “On information and belief, [defendant] has informed me that he wishes to withdraw his plea. On information and belief, [defendant]’s basis for seeking a plea withdrawal is a mistake stemming from some defect in my representation.” Neither the motion to withdraw the plea nor the supporting declaration mentioned an indicated sentence or suggested that the trial court had expressed any position prior to the sentencing hearing as to any sentence or the anticipated motion for reduction of the offense to a misdemeanor.

At the hearing on defendant’s motion to withdraw his plea, the trial court stated it would hold a closed hearing with defendant and defense counsel based on the nature of the motion. After the courtroom was cleared, defendant told the court that his counsel made insufficient efforts to locate a defense witness and “misled [him] into pleading no contest.” As to the second issue, defendant stated: “She felt that I wanted to have this case come to a close in a speedy manner. So she said that this was the best way to resolve the case and by doing so that I could close this case in a speedy way. I was told that the penalty would be a misdemeanor, community service, counseling, and alcohol counseling.”

In response to defendant’s second issue, defense counsel explained: “We came to this department in a trial posture and discussed potential resolution with the Court. From the very beginning the prosecution has always been vehemently opposed to any resolution of the case, other than for a felony. And from the very beginning when I received this case from private counsel, the primary concern that was expressed to me was an immigration concern.” Based on her evaluation of the strengths and weaknesses of defendant’s defense, defense counsel “thought that there was a risk of being convicted of a felony if [he] went to trial.” Thus, she advised defendant that “if there was a good indication from the Court and based on [her] evaluation . . . it would be more likely that [defendant] could get a misdemeanor from this case from an open plea than from a jury trial.”

Defense counsel referred to her conversation with the trial court in chambers: “My evaluation of what happened in chambers is that the Court indicated that without promising, I don’t believe that the Court made any promises, but my understanding was that there was a misdemeanor indication. That I made it very clear that I would not be advising [defendant] to plead . . . unless I felt confident, again without a promise, but that I was hearing information that would lead me to believe that the Court would sentence [defendant] to a misdemeanor, if the Court didn’t hear any new information. [¶] . . . [¶] An[d] so I advised [defendant] that there was no promises. And that the Court was not permitted to make promises at sentencing and that it was an open plea. But that I trusted this Court and that I had been very clear with the Court about what I thought the issues were and that I thought that this Court wouldn’t make . . . such a clean indication to me . . . unless the Court believed that a misdemeanor . . . was really within the realm of possibility.”

Defense counsel was “surprised” when the trial court denied the section 17 motion. She knew that “there were no promises,” but she had “thought that [a misdemeanor sentence] was possible and [she] . . . thought that it was likely.” “And it turn[ed] out that [she] was wrong about that.” Defense counsel “advised [defendant] of the penalty of what it would be for a felony. [She] advised him of possible consequences for a felony and the possible consequences of a misdemeanor . . . . [She] did say [she] did not know what was going to happen. [She] did say the Court didn’t promise, but [she] did tell him that [her] personal belief based on the indication that the Court would give him a misdemeanor.”

Defendant stated: “[Defense counsel] told me that in conversations with the judge and prosecutor there was a very high probability that [he] would be given a misdemeanor.” In response to the trial court’s questioning, defendant acknowledged that he “would agree that [defense counsel] did not tell [him] that [the trial court] was promising or guaranteeing that [he] would get a misdemeanor, but that in her opinion and her advice to him was that [he] had a high probability of it if [he] chose to plead no contest as opposed to going to trial.”

After defendant made some final comments, the trial court noted that both defendant and defense counsel had been “essentially . . . both telling [the court] the same thing” about their conversations about a possible plea. The trial court stated that defense counsel had advocated “at a very high level of professionalism” on defendant’s behalf. Regarding the plea negotiations, the trial court stated that “it was fair for [defense counsel] to advise [defendant] that [he] had a high likelihood of receiving a misdemeanor, although there was no guarantee.” From the trial court’s perspective, defendant’s “likelihood of receiving a misdemeanor was much higher if [he] pleaded no contest before going to trial than it would have been after trial if the evidence came out in the way that the parties were suggesting to [the court] and the jury found [him] guilty.” The trial court “did not promise you that [it] would reduce the charge to a misdemeanor and [defense counsel] knew that and she told [defendant] that.”

3. Analysis
4.
Defendant argues that he must be given an opportunity to withdraw his plea, because the trial court decided to impose a felony sentence after indicating that it would impose a misdemeanor sentence.

A trial court states an indicated sentence when it “informs a defendant ‘what sentence he [or she] will impose if a given set of facts is confirmed, irrespective of whether guilt is adjudicated at trial or admitted by plea.’ [Citation.]” (People v. Avignone (2017) 16 Cal.App.5th 1233, 1243-1244.)

Here, there is nothing in the record to support defendant’s claim that the trial court indicated that it would impose any particular sentence. Defendant expressly recognized in the plea form that the trial court had not given an indicated sentence. During the change of plea hearing, the trial court gave no indication as to what sentence it would impose or how it intended to rule on the section 17 motion. Defendant does not cite to anything in this portion of the record to support his argument.

Instead, defendant relies on statements made at the hearing on the motion to withdraw his plea. But they do not support his claim. In response to defendant’s statement that she had misled him into pleading no contest, defense counsel stated that she had evaluated the strength of the defense case and advised him that “it would be more likely that [he] could get a misdemeanor from this case from an open plea than from a jury trial.” She “thought that this Court wouldn’t make . . . such a clean indication to me . . . unless the Court believed that a misdemeanor . . . was really within the realm of possibility.” She advised defendant that there were no promises that he would be convicted of a misdemeanor if he entered a plea and she told him that she “did not know what was going to happen.” Though defense counsel thought it was “likely” the motion would be granted, she acknowledged that she was “wrong.” Defense counsel never stated at this hearing that the trial court had given an indicated sentence either to her or to defendant. Defendant himself stated that defense counsel had told him that there was a “very high probability” that the offense would be reduced to a misdemeanor, thus acknowledging that there had been no indicated sentence. Nothing in this transcript establishes that the trial court informed defendant or his counsel that his motion to reduce his offense to a misdemeanor would be successful. Given that we have concluded that there was no indicated sentence in the present case, the issue of whether a defendant was entitled to withdraw his plea on this ground is moot.

Relying on section 1018, defendant next argues that the trial court abused its discretion when it denied his request to withdraw his plea. He asserts that he “only agreed to plead once the court gave what counsel described as ‘such a clean indication.’ ”

Section 1018 provides in relevant part: “On application of the defendant . . . within six months after an order granting probation is made if entry of judgment is suspended, the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” “ ‘ “[T]the withdrawal of such a plea rests in the sound discretion of the trial court and may not be disturbed unless the trial court has abused its discretion.” [Citation.] . . .’ It is the defendant’s burden to produce evidence of good cause by clear and convincing evidence. [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522, 585.)

Here, defendant’s motion to withdraw his plea was based on ineffective assistance of counsel. Even if the motion had been based on the existence of an indicated sentence, defendant provided no evidence that the trial court informed him or defense counsel of an indicated sentence. Since he failed to show good cause to withdraw his plea, the trial court did not abuse its discretion when it denied the motion.

C. Probationary Search Condition
D.
The trial court imposed the following probation condition: “He shall submit his person, place of residence, vehicle, and any property under his control to search at any time without a warrant by any peace officer or law enforcement agency.” Defendant did not object to this condition.

Defendant contends that the term “property” includes electronic devices, such as cell phones, laptops, and computers, and thus the probation condition is unconstitutionally overbroad on its face because it impinges on his right to privacy

“ ‘A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.’ [Citation.]” (People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175 (Ebertowski).) We review the constitutionality of a probation condition de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 889.)

The case of In re I.V. (2017) 11 Cal.App.5th 249 (I.V.) is instructive. In I.V., the minor challenged the probation condition that required him to submit his “ ‘person, property, or vehicle, and any property under [his] immediate custody or control to search at any time, with or without probable cause, with or without a search warrant.’ ” (Id. at pp. 259-260.) He argued that the condition included the searches of electronic devices and data, and thus was unconstitutionally vague and overbroad on its face. (Id. at p. 260.)

The I.V. court concluded that the minor had forfeited his overbreadth claim, because he failed to object at the dispositional hearing, and thus the court was unable to examine the record to determine whether the condition was sufficiently tailored to meet the government’s interest in rehabilitation. (I.V., supra, 11 Cal.App.5th at p. 261.) However, the I.V. court found that the condition was not vague when properly construed. The court reasoned that “probation conditions authorizing searches of a probationer’s person, property, and vehicle are ‘routinely imposed.’ [Citation.] In other wardship proceedings, juvenile courts have expressly imposed specific electronics and password conditions in addition to the standard search condition where they intend to subject a minor’s electronic data to search. [Citations.] There is no indication in this case that in imposing the standard search condition, the juvenile court intended to authorize searches of I.V.’s electronic data.” (Id. at pp. 261-262.) Thus, the court concluded that “[r]easonably construed, the search condition applies only to tangible physical property, and not to electronic data.” (Id. at p. 262.)

Assuming that defendant has not forfeited his overbreadth challenge, we conclude that it has no merit. We agree with the analysis in I.V. The challenged probation condition in this case could not reasonably be construed to require defendant to provide access to any electronic devices in his possession. Though electronic devices fall within the definition of the term “property,” a probationer would not be required to provide a password or other access code to allow for the review of data on the device without an express electronic search probation condition. That courts have imposed electronic search conditions in addition to the standard search conditions indicates an understanding that electronic devices and the data on those devices are to be treated as a distinctive class of property. (See e.g., Ebertowski, supra, 228 Cal.App.4th at pp. 1173-1174; People v. Guzman (2018) 23 Cal.App.5th 53, 57-58.) As in I.V., here, there is also no indication that the trial court intended to authorize searches of defendant’s electronic data when it imposed the standard search condition. Since we conclude that the condition does not authorize the search of electronic devices, defendant’s overbreadth challenge is moot.

IV. Disposition

The order is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Premo, Acting P. J.

______________________________

Bamattre-Manoukian, J.

People v. Wang

H044600

Case Name: Shannon Sanchez, et al. v. ExamOne World Wide, Inc., et al.

Case No.: 17CV308382

This is a putative class and Private Attorneys General Act (“PAGA”) action on behalf of medical examiners for defendants ExamOne World Wide, Inc. and Quest Diagnostics Incorporated, alleging a number of wage and hour violations. Before the Court is plaintiffs’ motion for preliminary approval of a settlement, which is unopposed.

I. Factual and Procedural Background

As alleged in the operative complaint, defendants hired plaintiff Shannon Sanchez as an “Examiner” to conduct medical exams for insurance applications on October 18, 2016. (Second Amended Class Action Complaint (“SAC”), ¶ 7.) She was compensated on a piece-rate basis, and was terminated on January 27, 2017. (Id. at ¶¶ 7-8.) Plaintiff Richa Ahuja has worked for defendants as an Examiner since March of 2016 and is also paid on a piece-rate basis. (Id. at ¶ 8.) Plaintiffs allege that defendants intentionally failed to pay Examiners minimum and/or overtime wages for hours spent completing non-piece-rate tasks; failed to provide Examiners with duty-free meal periods and paid rest breaks; failed to provide compliant wage statements; failed to reimburse Examiners’ business expenses related to use of their personal vehicles; and, as a result of these other violations, failed to timely pay Examiners wages owed upon separation of employment. (Id. at ¶¶ 3, 24.)

Based on these allegations, plaintiffs bring claims for (1) violation of Labor Code sections 226.2, 510, 1194, 1197, and 1197.1 by failing to pay employees for all regular hours worked; (2) violation of Labor Code sections 226.7 and 512 due to meal period violations; (3) violation of Labor Code sections 226.2 and 226.7 due to rest period violations; (4) violation of Labor Code sections 226(a) and 226.2 by failing to provide compliant wage statements; (5) violation of Labor Code section 2802 by failing to reimburse business expenses; (6) derivative violations of the Unfair Competition Law; and (7) penalties pursuant to the Private Attorneys General Act (“PAGA”).

Plaintiff Ahuja originally filed suit against defendants in Alameda on April 3, 2017, alleging a claim under PAGA. (Ahuja v. ExamOne World Wide, Inc. (Super. Ct. Alameda County, No. RG17855141).) Plaintiff Sanchez filed suit in this Court on May 1, 2017, and Ahuja was transferred here by stipulation of the parties and consolidated with the above-entitled action. On December 12, 2018, plaintiffs filed the SAC, consolidating the allegations of their individual complaints.

Meanwhile, a related case, Munila v. Quest Diagnostics Incorporated (Super. Ct. Alameda County, 2017, No. RG16808899), proceeded in Alameda County. A class action settlement was finally approved in Munila on September 19, 2017, and the parties herein met and conferred regarding early settlement of this action considering the impact of Munila.

The parties have now reached a settlement. Plaintiffs move for an order preliminarily approving the settlement, provisionally certifying the settlement class, approving the form and method for providing notice to the class, and scheduling a final fairness hearing.

II. Legal Standards for Approving a Class Action/PAGA Settlement

Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, disapproved of on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.)

In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, internal citations and quotations omitted.)

In general, the most important factor is the strength of plaintiffs’ case on the merits, balanced against the amount offered in settlement. (See Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.) Still, the list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case. (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., quoting Dunk v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1801, internal quotation marks omitted.)

The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1802.) The presumption does not permit the Court to “give rubber-stamp approval” to a settlement; in all cases, it must “independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished,” based on a sufficiently developed factual record. (Kullar v. Foot Locker Retail, Inc., supra, 168 Cal.App.4th at p. 130.)

Finally, Labor Code section 2699, subdivision (l) provides that “[t]he superior court shall review and approve any penalties sought as part of a proposed settlement agreement pursuant to” PAGA. Seventy-five percent of any penalties recovered under PAGA go to the Labor and Workforce Development Agency (“LWDA”), leaving the remaining twenty-five percent for the aggrieved employees. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 380.) “[T]here is no requirement that the Court certify a PAGA claim for representative treatment” as in a class action. (Villalobos v. Calandri Sonrise Farm LP (C.D. Cal., July 22, 2015, No. CV122615PSGJEMX) 2015 WL 12732709, at *5.) “[W]hen a PAGA claim is settled, the relief provided … [should] be genuine and meaningful, consistent with the underlying purpose of the statute to benefit the public ….” (Id. at *13.) The settlement must be reasonable in light of the potential verdict value (see O’Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1135 [rejecting settlement of less than one percent of the potential verdict]); however, it may be substantially discounted given that courts often exercise their discretion to award PAGA penalties below the statutory maximum even where a claim succeeds at trial (see Viceral v. Mistras Group, Inc. (N.D. Cal., Oct. 11, 2016, No. 15-CV-02198-EMC) 2016 WL 5907869, at *8-9).

III. Settlement Process

According to a declaration by plaintiffs’ counsel, following final approval of the settlement in Munila, the parties began settlement negotiations and agreed to stay discovery and exchange records and informally. Defendants provided employment data related to potential class members, including the total number of current and former employees, the number of pay periods and hourly rates at issue, and other pertinent information such as defendants’ policies regarding meal and rest periods, travel time, and reimbursement for work-related expenses. Plaintiffs’ counsel also analyzed plaintiffs’ payroll records and time-card data in preparation for settlement discussions.

The parties were able to reach agreement on the principal amount of a settlement in April of 2019. They continued to negotiate key terms of the agreement before the Court until December of 2019.

IV. Provisions of the Settlement

The non-reversionary gross settlement amount is $575,000. Attorney fees of up to $191,666.67 (one-third of the gross settlement), litigation costs not to exceed $10,000, and administration costs of approximately $8,500 (and not to exceed $10,000) will be paid from the gross settlement. $20,000 will be allocated to PAGA penalties, 75 percent of which will be paid to the LWDA. The named plaintiffs will also seek enhancement awards of $10,000 each.

The net settlement of approximately $329,833.33 will be distributed to individual class members pro rata based on their gross wages received during the class period. The average settlement payment will be approximately $749.62 to each of the 440 class members, and class members will not be required to submit a claim to receive their payments. Settlement awards will be allocated 1/3 to wages and 2/3 to interest and penalties, and defendants will pay the employer-side payroll taxes in addition to funding the gross settlement. The settlement provides that funds associated with checks uncashed after 180 days will revert to the “State of California Unclaimed Fund” in the name of the class member.

Class members who do not opt out of the settlement will release all claims, causes of action, etc. “stated in the Action or which could have been asserted based on the facts and allegations asserted in the Action,” including specified wage and hour claims, “or based on, arising from, or related to any claim, cause of action, or allegation that during the Class Period Mobile Examiners were not properly reimbursed for their expenses, did not receive compliant wage statements, did not receive their wages timely, were not provided or paid for meal and/or rest periods, were not paid overtime or minimum wage[s], or were not properly classified as independent contractors”; “claims, facts, and allegations that were pled or could have been pled in the Action and Second Amended Complaint …”; or “any other related or derivative claims in law or equity based on the subject matter hereof” during the class period. Claims and causes of action “unrelated to alleged wage-and-hour violations, including but not limited to claims for alleged unlawful discrimination or harassment, and claims which may not be released, compromised, or waived by law” are expressly excluded from the release.

V. Fairness of the Settlement

As an initial matter, counsel in other actions have informed the Court that the California State Controller’s Office is no longer accepting funds associated with wage and hour settlements for deposit as unclaimed property. Unless the parties have a different understanding, they shall meet and confer regarding the appropriate disposition of unclaimed funds in this matter pursuant to Code of Civil Procedure section 384 and shall select a recipient of such funds prior to final approval.

With regard to the value of the settlement, plaintiffs estimated that the maximum potential value of the case was $1.4 million for the minimum wage and overtime claims, $1.616 million for the meal and rest period claims, $1.54 million for the claims arising from failure to reimburse expenses, $614,000 for the wage statement claims, and $540,000 in waiting time penalties, for a total potential value of $5.7 million. However, in response to the Munila action, defendants changed their employment practices to comply with the Labor Code in October of 2017, reducing the applicable liability period from thirty months to seven months. In light of these changes, plaintiffs reduced their estimate of the case’s potential value to $1,287,060.

Moreover, defendants assert that nearly all members of the settlement class, including the named plaintiffs, signed valid and enforceable arbitration agreements with class action waivers, so that only PAGA civil penalties could be recovered on a class-wide basis. They also dispute the merits of plaintiffs’ claims, contending that they permissibly structured flat-fee payments to Examiners to include business expenses, case law does not support plaintiffs’ derivative wage statement claim, and any violations were not willful so as to entitle plaintiffs to waiting time penalties.

Considering the changes to defendants’ employment practices that were implemented, the gross settlement represents approximately 45 percent of the maximum exposure in the case. This is a good result for the class, particularly considering the presence of arbitration agreements that may limit classwide recovery. This result is consistent with the outcome in Munila, which plaintiffs note involved the same claims as this case (asserted as to an earlier class period) and was settled for a similar amount considering the length of the applicable class period. Finally, the Court finds that the PAGA allocation provided by the settlement is genuine and meaningful. The Court will consequently grant preliminary approval.

The Court retains an independent right and responsibility to review the requested attorney fees and award only so much as it determines to be reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) While 1/3 of the common fund for attorney fees is generally considered reasonable, counsel shall submit lodestar information prior to the final approval hearing in this matter so the Court can compare the lodestar information with the requested fees. (See Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 504 [trial courts have discretion to double-check the reasonableness of a percentage fee through a lodestar calculation].)

VI. Proposed Settlement Class

Plaintiffs requests that the following settlement class be provisionally certified:

All current and former full-time and part-time persons employed by Defendants as Mobile Examiners in California, at any time from March 1, 2017 to September 30, 2019.

Excluded from the class is

any person who opts out of the Settlement, or any person who has a) separately settled or released the claims covered by this Settlement or claims against Defendants generally, b) was paid or received awards through civil or administrative actions for the claims covered by this Settlement, or c) has separately brought or is separately bringing on his or her own behalf … any former or pending lawsuit, arbitrations, or administrative claim (such as a Labor Commissioner claim) against Defendants asserting any of the claims covered by this Settlement.

A. Legal Standard for Certifying a Class for Settlement Purposes

Rule 3.769(d) of the California Rules of Court states that “[t]he court may make an order approving or denying certification of a provisional settlement class after [a] preliminary settlement hearing.” California Code of Civil Procedure Section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court ….” As interpreted by the California Supreme Court, Section 382 requires the plaintiff to demonstrate by a preponderance of the evidence (1) an ascertainable class and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court (Rocher) (2004) 34 Cal.4th 319, 326, 332.)

The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact, (2) class representatives with claims or defenses typical of the class, and (3) class representatives who can adequately represent the class. (Ibid.) “Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (Botney) (1976) 18 Cal.3d 381, 385.)

In the settlement context, “the court’s evaluation of the certification issues is somewhat different from its consideration of certification issues when the class action has not yet settled.” (Luckey v. Superior Court (Cotton On USA, Inc.) (2014) 228 Cal.App.4th 81, 93.) As no trial is anticipated in the settlement-only context, the case management issues inherent in the ascertainable class determination need not be confronted, and the court’s review is more lenient in this respect. (Id. at pp. 93-94.) However, considerations designed to protect absentees by blocking unwarranted or overbroad class definitions require heightened scrutiny in the settlement-only class context, since the court will lack the usual opportunity to adjust the class as proceedings unfold. (Id. at p. 94.)

B. Ascertainable Class

“The trial court must determine whether the class is ascertainable by examining (1) the class definition, (2) the size of the class and (3) the means of identifying class members.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 873.) “Class members are ‘ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records.” (Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 932.)

Here, the estimated 440 class members have already been identified based on defendants’ records. Thus, the class is numerous and ascertainable. However, the parties inconsistently define the class with reference to Examiners employed by “Defendants” in some documents and with reference to Examiners employed by “Quest Diagnostics Incorporated” or “as ExamOne Mobile Examiners” for Quest in others. The parties are directed to meet and confer regarding the appropriate class definition. They shall address this issue with the Court at the hearing on this matter and update the class notice to reflect the appropriate definition if necessary.

C. Community of Interest

With respect to the first community of interest factor, “[i]n order to determine whether common questions of fact predominate the trial court must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.” (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916.) The court must also give due weight to any evidence of a conflict of interest among the proposed class members. (See J.P. Morgan & Co., Inc. v. Superior Court (Heliotrope General, Inc.) (2003) 113 Cal.App.4th 195, 215.) The ultimate question is whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. (Lockheed Martin Corp. v. Superior Court, supra, 29 Cal.4th at pp. 1104-1105.) “As a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.” (Hicks v. Kaufman & Broad Home Corp., supra, 89 Cal.App.4th at p. 916.)

Here, common legal and factual issues predominate. Plaintiffs’ claims all arise from defendants’ wage and hour practices applied to the similarly-situated class members.

As to the second factor,

The typicality requirement is meant to ensure that the class representative is able to adequately represent the class and focus on common issues. It is only when a defense unique to the class representative will be a major focus of the litigation, or when the class representative’s interests are antagonistic to or in conflict with the objectives of those she purports to represent that denial of class certification is appropriate. But even then, the court should determine if it would be feasible to divide the class into subclasses to eliminate the conflict and allow the class action to be maintained.

(Medrazo v. Honda of North Hollywood (2008) 166 Cal. App. 4th 89, 99, internal citations, brackets, and quotation marks omitted.)

Like other members of the class, plaintiffs were employed by defendants as Examiners and allege that they experienced the violations at issue. The anticipated defenses are not unique to plaintiffs, and there is no indication that plaintiffs’ interests are otherwise in conflict with those of the class.

Finally, adequacy of representation “depends on whether the plaintiff’s attorney is qualified to conduct the proposed litigation and the plaintiff’s interests are not antagonistic to the interests of the class.” (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.) The class representative does not necessarily have to incur all of the damages suffered by each different class member in order to provide adequate representation to the class. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 238.) “Differences in individual class members’ proof of damages [are] not fatal to class certification. Only a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status.” (Ibid., internal citations and quotation marks omitted.)

Plaintiffs have the same interest in maintaining this action as any class member would have. Further, they have hired experienced counsel. Plaintiffs have sufficiently demonstrated adequacy of representation.

D. Substantial Benefits of Class Certification

“[A] class action should not be certified unless substantial benefits accrue both to litigants and the courts. . . .” (Basurco v. 21st Century Ins. (2003) 108 Cal.App.4th 110, 120, internal quotation marks omitted.) The question is whether a class action would be superior to individual lawsuits. (Ibid.) “Thus, even if questions of law or fact predominate, the lack of superiority provides an alternative ground to deny class certification.” (Ibid.) Generally, “a class action is proper where it provides small claimants with a method of obtaining redress and when numerous parties suffer injury of insufficient size to warrant individual action.” (Id. at pp. 120-121, internal quotation marks omitted.)

Here, there are an estimated 440 members of the proposed class. It would be inefficient for the Court to hear and decide the same issues separately and repeatedly for each class member. Further, it would be cost prohibitive for each class member to file suit individually, as each member would have the potential for little to no monetary recovery. It is clear that a class action provides substantial benefits to both the litigants and the Court in this case.

VII. Notice

The content of a class notice is subject to court approval. (Cal. Rules of Court, rule 3.769(f).) “The notice must contain an explanation of the proposed settlement and procedures for class members to follow in filing written objections to it and in arranging to appear at the settlement hearing and state any objections to the proposed settlement.” (Ibid.) In determining the manner of the notice, the court must consider: “(1) The interests of the class; (2) The type of relief requested; (3) The stake of the individual class members; (4) The cost of notifying class members; (5) The resources of the parties; (6) The possible prejudice to class members who do not receive notice; and (7) The res judicata effect on class members.” (Cal. Rules of Court, rule 3.766(e).)

Here, the notice describes the lawsuit, explains the settlement, and instructs class members that they may opt out of the settlement or object. The gross settlement amount and estimated deductions are provided, along with each class member’s estimated payment. Class members are informed of their gross wages during the class period as reflected in defendants’ records and are given 45 days to request exclusion from the class or submit any written objections. The notice instructs class members that they may appear at the final fairness hearing and make an oral objection even if they do not submit a written objection, and directs them how to dispute their gross pay information. The notice will be issued in English only. The form of notice is adequate and is approved.

Turning to the notice procedure, the parties have selected Atticus Administration, LLC as the settlement administrator. The administrator will mail the notice packet within 10 days of receiving class members’ information from defendants, after updating class members’ addresses using the National Change of Address database. Any notice packets returned as undeliverable will be re-mailed to any forwarding address provided or located through skip tracing. These notice procedures are appropriate and are approved.

VIII. Conclusion and Order

Subject to the parties’ agreement on a single, appropriate definition of the settlement class, plaintiffs’ motion for preliminary approval is GRANTED. The final approval hearing shall take place on May 1, 2020 at 9:00 a.m. in Dept. 1.

The Court will prepare the order.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

PETRA GODINEZ; JOSE RODRIGUEZ; FLORENTINO GAYOSO, Individually and on Behalf of All Other Similarly Situated Employees of Defendants,

Plaintiffs,

vs.

EL POLLO LOCO, INC.; W.K.S. RESTAURANT GROUP, INC.; SUNNYVALE/SANTA CLARA EL POLLO LOCO, LLC; W.K.S. RESTAURANT CORPORATION; and DOES 1 to 100, inclusive,

Defendants.

Case No. 17CV317828

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on January 17, 2020, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION
II.
This is a putative class action. Plaintiffs Petra Godinez, Jose Rodriguez, and Florentino Gayoso (collectively, “Plaintiffs”) allege various Labor Code violations in the First Amended Class Action Complaint (“FAC”), filed on November 1, 2017.

The FAC sets forth causes of action titled: (1) Unpaid Wages (Violation of Labor Code §§ 216, 1194, 1197); (2) Failure to Pay Overtime Wages (Violation of Labor Code §§ 204, 510, 1198); (3) Failure to Pay Wages for Rest Periods (Violation of Labor Code § 226.7); (4) Failure to Pay Wages for Meal Periods (Violation of Labor Code §§ 226.7, 512); (5) Failure to Properly Report Pay (Labor Code §§ 226, 1174); (6) Waiting Time Penalties (Labor Code §§ 201, 202, 203); (7) Violation of the UCL – Unlawful Business Acts and Practices (Bus. & Prof. Code § 17200, et seq.); (8) Violation of the UCL – Unfair Business Acts and Practices (Bus. & Prof. Code § 17200, et seq.); (9) Violation of the UCL – Fraudulent Business Acts and Practices (Bus. & Prof. Code § 17200, et seq.); (10) Fraud/Intentional Misrepresentation; and (11) Civil Penalties (Labor Code § 2699).

The parties have reached a settlement. On September 9, 2019, the Court granted preliminary approval of the settlement. Plaintiffs now move for final approval of the settlement.

III. LEGAL STANDARD
IV.
Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794.)

In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 F.2d 615, 624.)

“The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.)

The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48 Cal.App.4th at p. 1802.)

V. DISCUSSION
VI.
The case has been settled on behalf of the following class:

All employees who were employed as exempt General Managers in the restaurants owned and/or operated by Defendants in the state of California during the Class Period (October 20, 2013 up to and including the date of Preliminary Approval), and who have not already released the Settled Claims.

The class is split into two sub-classes. Sub-class 1 includes all class members who worked as General Managers after October 20, 2014 through the date of preliminary approval. Sub-class 2 includes all class members, other than those in Sub-class 1, who worked as exempt General Managers from October 20, 2013 up to and including, but not after, October 20, 2014.

As discussed in connection with preliminary approval, defendants Sunnyvale/Santa Clara El Pollo Loco, LLC and W.K.S. Restaurant Corporation (collectively, “Defendants”) will pay a total amount of $285,000. The settlement amount includes attorneys’ fees and costs of $94,990.50, a PAGA payment of $10,000 ($7,500 of which will be paid to the LWDA), and claims administration fees of $9,000. Of the remaining net amount of $171,009.50, the parties plan to allocate $150,488.36 (88%) plus the $2,500 PAGA payment to Sub-class 1. The parties plan to allocate $20,521.14 (12%) to Sub-class 2.

For tax purposes, 40% of the payments will be considered wages and 60% will be considered statutory interest and other miscellaneous income, not subject to income tax withholding and payroll taxes. Checks not cashed within 150 days after mailing will be given to a cy pres recipient – Legal Aid at Work.

On October 22, 2019, the settlement administrator mailed notice packets to all 43 class members. (Declaration of Abigail Schwartz for Rust Consulting, Inc. (“Schwartz Decl.”), ¶ 8.) There are no undeliverable class notices. (Id. at ¶ 9.) There are no requests for exclusion. (Id. at ¶ 11.)

There is one objection. (Id. at ¶ 12.) The objection is from Maria Isabel Ontiveros. (Schwartz Decl., Ex. B.) Ms. Ontiveros asserts “[t]he settlement is unfair because [she] worked more than they paid [her].” (Ibid.) While the Court understands this perspective, it is to be expected that recovery through settlement will be less than the full amount sought because settlement is a compromise.

The Court previously found that the proposed settlement is fair and the Court continues to make that finding for purposes of final approval.

The Court also has an independent right and responsibility to review the requested attorneys’ fees and only award so much as it determines reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiffs’ counsel requests attorneys’ fees in the amount of $94,990.50 (approximately one-third of the total settlement fund). Plaintiffs’ counsel provides evidence demonstrating a lodestar of $135,815, which results in a negative multiplier. (Declaration of Robert S. Arns in Support of Motion for Award of Attorneys’ Fees, Costs, and Service Awards, ¶ 22.) The attorneys’ fees are approved.

The motion for final approval of class action settlement is GRANTED.

Pursuant to Rule 3.769, subdivision (h), of the California Rules of Court, this Court retains jurisdiction over the parties to enforce the terms of the Settlement Agreement, and the final Order and Judgment.

The Court now sets a compliance hearing on October 2, 2020 at 10:00 a.m. in Department 5. At least ten court days before the hearing, class counsel and the settlement administrator shall submit a summary accounting of the net settlement fund identifying distributions made as ordered herein, the number and value of any uncashed checks, amounts remitted to Defendant, the status of any unresolved issues, and any other matters appropriate to bring to the Court’s attention. Counsel may appear at the compliance hearing telephonically.

The Court will prepare the final order if this tentative ruling is not contested.

NOTICE: The Court does not provide court reporters for proceedings in the complex civil litigation departments. Parties may arrange for a private court reporter to provide services, but those arrangements must be consistent with the local rules and policies posted on the Court’s website.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

KORBIN WILSON and MATTHEW BURNHAM, as individuals, on behalf of themselves and all others similarly situated, and as the State of California as private attorney generals,

Plaintiffs,

vs.

DGDG 1, LLC; DGDG 2, LLC; DGDG 3, LLC; DGDG 4, LLC; DGDG 5, LLC; DGDG 6, LLC; DGDG 7, LLC; DGDG 8, LLC; DGDG 9, LLC; DGDG 10, LLC; DGDG 11, LLC; DGDG 12, LLC; DGDG 13, LLC; DGDG 14, LLC; DGDG 15, LLC; DGDG 16, LLC; DGDG 17, LLC; DGDG 18, LLC; DGDG MANAGEMENT, LLC; DEL GRANDE ENTERPRISES, INC.,

Defendants.

Case No. 18CV331434

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on January 17, 2020, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION
II.
This is a putative class action arising out of various alleged wage and hour violations. The Third Amended Class and PAGA Representative Action Complaint, filed on July 22, 2019, sets forth causes of action titled: (1) Failure to Pay for Non-Productive Time; (2) Failure to Provide Paid Rest Periods and Pay Non-Compliant Rest Period Premiums; (3) Failure to Pay Overtime; (4) Meal Period Violations; (5) Violation of Labor Code § 226; (6) Violation of Labor Code §§ 201-203; (7) Violation of Business & Professions Code § 17200; and (8) Penalties Pursuant to Labor Code § 2699.

The parties have reached a settlement. On September 9, 2019, the Court granted preliminary approval of the settlement. Plaintiffs now move for final approval of the settlement.

III. LEGAL STANDARD
IV.
Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794.)

In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 F.2d 615, 624.)

“The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.)

The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48 Cal.App.4th at p. 1802.)

V. DISCUSSION
VI.
A. Provisions of the Settlement
B.
The case has been settled on behalf of the following class:

All current and former non-exempt employees of Defendants DGDG 1-17, LLC; DGDG 18, LLC; Defendant Del Grande Enterprises, Inc.; and any dealership or other entity within the scope of the group of companies known colloquially as the Del Grande Dealer Group; and any other Released Party (as defined hereon) who were paid, in whole or in part, compensation in the form of commissions for work performed during the period from June 1, 2014, through March 31, 2019.

As discussed in connection with preliminary approval, Defendants will pay a total amount of $875,000. However, pursuant to an “escalator clause” in the settlement, based on an increase in the number of pay periods, the gross settlement amount has been increased to $1,024,963.71. The settlement amount includes attorneys’ fees of $341,654.57, costs of $25,000, service awards of $20,000 ($10,000 per class representative), claims administration expenses of $14,450, and $20,000 in PAGA penalties ($15,000 of which will be paid to the LWDA). The settlement is non-reversionary and the estimated average net settlement payment to each class member is approximately $479.04. Checks not cashed within 180 days from the date of mailing will be distributed to cy pres beneficiary Make-a-Wish Foundation.

On October 23, 2019, the settlement administrator mailed notice packets to all 1,215 class members. (Declaration of Will Henry on Behalf of CPT Group, Inc., With Respect to Notification and Administration, ¶¶ 5 and 7.) Ultimately, 52 notice packets remained undelivered. (Id. at ¶ 8.) There have been no objections. (Id. at ¶ 9.) The settlement administrator has received two requests for exclusion – Mark Portillo and Juan Rico. (Id. at ¶ 10.)

The Court previously found that the proposed settlement is fair and the Court continues to make that finding for purposes of final approval.

Plaintiffs request class representative incentive awards of $10,000 for each of the two class representatives – Korbin Wilson and Matthew Burnham.

The rationale for making enhancement or incentive awards to named plaintiffs is that they should be compensated for the expense or risk they have incurred in conferring a benefit on other members of the class. An incentive award is appropriate if it is necessary to induce an individual to participate in the suit. Criteria courts may consider in determining whether to make an incentive award include: 1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 4) the duration of the litigation and; 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation. These “incentive awards” to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit.

(Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394-1395, quotation marks, brackets, ellipses, and citations omitted.)

The class representatives have submitted declarations detailing their participation in the lawsuit. Burnham states he provided factual background, reviewed documents, discussed litigation and settlement strategy with class counsel, and participated throughout the litigation and at mediation. (Declaration of Matthew Burnham in Support of Motion for Final Approval of Class Settlement, ¶ 6.) He spent approximately 50 hours on the case. (Ibid.)

Wilson states he communicated with class counsel and also spoke with other employees. (Declaration of Korbin Wilson in Support of Motion for Final Approval of Class Settlement, ¶ 9.) He also gathered and reviewed documents and traveled to meetings. (Id. at ¶ 12.) He spent approximately 25 hours on the case. (Ibid.)

The Court finds incentive awards are warranted and they are approved in the amounts of $10,000 for Burnham and $7,500 for Wilson.

The Court also has an independent right and responsibility to review the requested attorneys’ fees and only award so much as it determines reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiffs’ counsel requests attorneys’ fees in the amount of $341,654.57 (1/3 of the total settlement amount). Plaintiffs’ counsel provides evidence demonstrating a lodestar of $189,626.25, which results in a multiplier of approximately 1.8. This is reasonable in light of the recovery. The attorneys’ fees are approved.

Plaintiffs request $12,140.16 for actual incurred costs. The requested costs are approved.

The motion for final approval of class action settlement is GRANTED, subject to the reduction in the incentive award.

Pursuant to Rule 3.769, subdivision (h), of the California Rules of Court, this Court retains jurisdiction over the parties to enforce the terms of the Settlement Agreement, and the final Order and Judgment.

The Court now sets a compliance hearing on July 31, 2020 at 10:00 a.m. in Department 5. At least ten court days before the hearing, class counsel and the settlement administrator shall submit a summary accounting of the net settlement fund identifying distributions made as ordered herein, the number and value of any uncashed checks, amounts remitted to Defendant, the status of any unresolved issues, and any other matters appropriate to bring to the Court’s attention. Counsel may appear at the compliance hearing telephonically.

The Court will prepare the final order and judgment if this tentative ruling is not contested.

NOTICE: The Court does not provide court reporters for proceedings in the complex civil litigation departments. Parties may arrange for a private court reporter to provide services, but those arrangements must be consistent with the local rules and policies posted on the Court’s website.

Case Number: 19STCP01571 Hearing Date: January 21, 2020 Dept: 85

Samuel J. Cross, et al. v. City of Redondo Beach Housing Authority, et al., 19STCP01571

Tentative decision on petition for writ of mandate: granted in part

Petitioners Samuel J. Cross (“Cross”) and K’Tiste Bradshaw (“Bradshaw”) petition the court for a writ of mandate compelling Respondents City of Redondo Beach Housing Authority and Bill Brand, in his official capacity as Chairman of the Housing Authority (collectively “Housing Authority”), to set aside its decision denying Petitioners Section 8 housing benefits.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioners commenced this proceeding on April 29, 2019, alleging a cause of action for administrative mandamus. The Petition alleges in pertinent part as follows.

Petitioners are participants in a Redondo Beach (“City”) Section 8 Rental Assistance voucher program (“Program”). Bradshaw sporadically works at Hammer and Nails, a salon in West Hollywood, CA, with gaps between shifts as large as 12 days and little notice before new shifts.

On November 7, 2019, Petitioners participated in an eligibility interview with Housing Specialist Angelica Zavala (“Zavala”) and Housing Inspector Tony Clarke (“Clarke”) regarding participation in the Program. Petitioners provided information regarding their annual income and on January 9, 2019 informed the Housing Authority of changes to the household income. The changes included additional pay checks from Hammer and Nails.

On February 7, 2019, the Housing Authority formally notified Petitioners that their voucher benefits were being terminated due to fraud and violation of family obligations. Bradshaw requested an informal hearing, which the Housing Authority scheduled and held on March 13, 2019.

The Housing Authority’s hearing officer upheld the termination, effective April 30, 2019. As a result of the unlawful termination of their benefits, Petitioners will be unable to pay their rent and evicted from their rental unit, thereby suffering irreparable harm. The Housing Authority’s determination is not supported by the weight of the evidence. The decision stems from factual and legal errors and is inconsistent with federal regulations, guidance issued by the Department of Housing and Urban Development (“HUD”), and the Housing Authority’s own implementing regulations.

2. Course of Proceedings

Petitioners initially acted pro per in filing the Petition and seeking an ex parte application for a stay of the administrative decision. The court denied the application without prejudice on procedural grounds on April 30, 2019.

On June 17, 2019, Attorney Paul John Estuar (“Estuar”) filed a substitution of attorney for Petitioners.

B. Standard of Review

Code of Civil Procedure (“CCP”) section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). In administrative mandamus actions to review decisions terminating welfare assistance, the trial court exercises independent judgment on the evidence. Frink v. Prod, (1982) 31 Cal.3d 166, 171.

The Housing Authority asserts that the independent judgment standard of review should not apply because Petitioners did not legitimately acquire the benefit, and the right in question was not vested. Opp. at 7. This argument is bootstrapping. Petitioners received Section 8 benefits and then they were terminated. This case concerns whether the termination was proper. The court cannot decide that the termination was proper and then conclude that the standard of review is substantial evidence.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Id. at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

However, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

C. Section 8 Law

1. The Program

The federal government provides rental assistance for low and moderate income families, the elderly, and the disabled through what is known as “the Section 8 program.” Congress added the Section 8 program to the United States Housing Act of 1937 in 1974 by enacting the Housing and Community Development Act of 1974, Pub.L. No. 93-333, §20 1(a), (codified as amended at 42 U.S.C. § 14370). The express purpose of the Section 8 program is “aiding low-income families in obtaining a decent place to live and promoting economically mixed housing.” 42 U.S.C. §1437f(a). The program is managed federally by the United States Department of Housing and Urban Development (“HUD”), and administered locally by public housing authorities (“PHA”).

Section 8 tenants must sign a lease and pay a portion of their income toward rent. The remainder of the rent charge is paid by PHA pursuant to a housing assistance payment (“HAP”) contract between PHA and the owner, which mandates that a lease “shall be for a term of not less than [one] year” (42 U.S.C. § 1437f (o)(7XA)), shall “contain terms and conditions that are consistent with State and local law,” (42 U.S.C. §1437f(o)(7)(B)(ii)(I)), and “shall provide that during the term of the lease, the owner shah not terminate the tenancy except for serious or repeated violation of the terms and conditions of the lease, for violation of applicable Federal, State, or local law, or for other good cause.” 42 U.S.C. §1437f(o)(7)(C).

HUD enters into annual contracts with its PHAs and provides the PHAs funds to subsidize rental payments to private landlords for eligible tenants. Administration of Respondent’s program is governed by Title 24 C.F.R. PHAs are required to adopt a written administrative plan that establishes local policies for administration of the program in accordance with HUD requirements. 24 C.F.R. § 982.54(a)-(b).

The participant’s voucher is portable. The participant/tenant may choose to live in any property if the landlord agrees to accept the voucher and comply with the applicable regulations. The government subsidy is limited to the difference between the amount the family is required to contribute and the payment standard established by PHA based on fair market rents for the area. 42 U.S.C. §1437f(o)(1)(B), (o)(2)(A)-(B).

HUD regulations identify the obligations of each Section 8 participant, referred to as “Family Obligations.” See 24 CFR §982.551. Included in the list of Family Obligations is the requirement that the family supply any information that the PHA or HUD determines is necessary in the administration of the program. 24 C.F.R. §982.551(b)(1); §982.551(k). Violation of any of the Family Obligations is grounds for termination of Section 8 benefits. 24 C.F.R. §982.552(c)(1)(i).

Participants are required to report a change of family composition immediately. 24 C.F.R. § 982.516(e); 982.551(h)(2). The amount of rental subsidy, which is paid by voucher, is based on the number of family members who will reside in the rental unit. Participants are required to report that a family member has left the household in writing within 30 days of the occurrence. The failure to do so is a basis to terminate Section 8 benefits.

The government’s rental assistance payment can be terminated for a variety of reasons. Among them are repeated violations of the lease (24 C.F.R. §982.55 1(a) & (e), §982.552(a)), failure to provide information to the PHA (24 C.F.R. § 982.551(b), 982.552(a)), and fraud. 24 C.F.R. §982.552(c)(1)(iv). PHAs have a duty to consider whether a reasonable accommodation is required with regard to a termination decision when the family includes a person with disabilities. 24 CFR §982.552(c)(2)(iv).

2. The Due Process Requirements for Termination

A subsidy for housing through the Section 8 program is a property interest of the recipient entitled to due process protection meeting the requirements of Goldberg v. Kelly, (“Goldberg”) (1970) 397 U.S. 254; United States v. Robinson, (Dist. R.I.) 721 F.Supp. 1541, 1542.

In Goldberg, the Supreme Court recognized that due process mandates several safeguards prior to the government’s termination of welfare benefits. In order to comply with due process, the individual must be given a meaningful pre-termination hearing including the following safeguards: (1) timely and adequate notice detailing the reasons for termination; (2) an opportunity to appear personally at the hearing, present evidence and oral arguments and confront and cross-examine adverse witnesses; (3) the right to be represented by counsel; (4) a right to a decision rendered by an impartial decision-maker; (5) a right to have that decision based solely on rules of law and the evidence presented at the hearing; and (6) a right to a statement by the decision-maker setting forth the reasons for the decision and the evidence upon which it was based. However, the decision need not amount to a comprehensive judicial opinion with formal findings of fact and legal conclusions. 397 U.S. at 271; 24 C.F.R. § 982.555(e)(6) (requiring “a written decision, stating briefly the reasons for the decision”). The purpose of the pre-termination hearing is to produce an initial determination of the validity of the agency’s grounds for terminating benefits. 397 U.S. at 267.

3. The Termination Hearing

These due process requirements are codified in 24 C.F.R. Upon notice of intent to terminate Section 8 assistance, the participant is entitled to an informal hearing. 24 C.F.R. §982.555(e), (a)(1)(v). The notice must contain a brief statement of reasons for the decision to terminate. 24 C.F.R. §982.555(c)(2)(i).

The hearing may be conducted by any person designated by the PHA, other than a decision-maker on the matter under review or a subordinate of that decision-maker. 24 C.F.R. §982.555(e)(4). The family must be permitted to examine before the hearing any directly relevant documents to be used by the PHA. If the document is not made available, the PHA may not rely on it at the hearing. 24 C.F.R. §982.555(e)(2)(i).

At the hearing, both sides may present evidence and question any witnesses. 24 C.F.R. §982.555(e)(5). The hearing officer may consider all evidence without regard to the rules of evidence applicable to judicial proceedings. Id. The purpose of this rule is to free administrative agencies from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate an administrative order. But the assurance of flexibility does not justify orders without a basis in evidence having rational force, and uncorroborated hearsay and rumor are not substantial evidence. Edison v. National Labor Relations Board, (1938) 305 U.S. 197, 217.

The PHA must show the termination is appropriate based on a preponderance of the evidence. 24 C.F.R. §982.555(c). The hearing officer must issue a written decision, stating briefly the reasons for it. 24 C.F.R. §982.555(e)(6).

4. The Housing Authority

Respondent Housing Authority is a PHA that administers the Section 8 rent subsidy program in the City.

Housing Authority’s Administrative Plan states that it will generally use current circumstances to project anticipated income for the coming 12-month period. Pet. RJN Ex. A, p.6-7. An exception exists where it is not feasible to anticipate a level of income over a 12-month period, such as seasonal or cyclical income. Ex. A, p.6.

“Temporary, nonrecurring, or sporadic income” is income that is not received periodically and cannot be reliably predicted. For example, the income of an individual who works occasionally as a handyman would be sporadic if future work could not be anticipated and no historic, stable pattern of income existed. Housing Authority will consider the family’s total income in determining whether to count other sporadic income. If, for instance, the family reports little or no other income, Housing Authority may include this income once a pattern of work is established. Pet. RJN Ex. A, p.6-9.

D. Statement of Facts[1]

1. Background and Application

On October 11, 2018, Petitioners applied for the Program by submitting a Tenant Information Form stating that they received $2,800 per month from Cross’s work for Apple One and $577 per month from Bradshaw’s CalFresh/Works food stamp benefits. AR 41.

On November 7, 2018, Petitioners attended an Eligibility Interview for participation in the Program with Housing Specialist Zavala and Housing Inspector Clarke. AR 21. Based on their income disclosures, Petitioners’ combined annualized income was found to be $38,768, below the Program’s $43,650 income limit for a family of three. See AR 21. Thus, Petitioners qualified for housing assistance. AR 21.

At the November 7 meeting, Petitioners received and signed both the Agreement to Comply with the Regulations of the Housing Authority and the Housing Authority’s Family Obligations form. AR 93-95. Both the agreement and form required Petitioners to report all new sources of household income within two weeks. AR 92, 93.

On January 9, 2019, Petitioners submitted two household income adjustments, one reflecting that Cross was no longer receiving income from Apple One, and the other declaring that Bradshaw began working for Hammer and Nails in October 2018 and received an income source increase in November. AR 21, 92. Bradshaw also stated that her job was not consistent and she skipped working for weeks and then picked it back up. See AR 21, 92.

At the Housing Authority’s request, Petitioners submitted proof of Cross’s termination and Bradshaw’s employment with Hammer and Nails on January 23, 2019. AR 22, 57. Bradshaw provided one pay stub showing gross pay of $247.59 and year-to-date pay of $2036.15. See AR 22.

On January 24, 2019, Hammer and Nails salon confirmed that Bradshaw had begun work for them on September 29, 2018. She received paychecks on October 15, November 1, and November 15, for a total of 44 hours worked at $17 per hour. AR 55-57, 96. Hammer and Nails also verified that Bradshaw had worked for it consistently, albeit not a lot of hours. See AR 22, 96.

2. The Termination Notice

On January 24, 2019, the Housing Authority sent Petitioners a letter informing them that their Program assistance would terminate on March 31, 2019 due to their violation of the family obligations and commitment of fraud in failing to report Bradshaw’s employment with and income from Hammer and Nails. AR 43-47. The Housing Authority noted that the information Bradshaw submitted with her household income adjustment showed that she started working for Hammer and Nails in October 2018 and had been paid a total of $2,036.15 over 12 weeks, averaging $169.68 per week and an annualized total of $8,823.36. AR 45. The Housing Authority had contacted Hammer and Nails, which confirmed that Bradshaw worked and received paychecks consistently despite working few hours. AR 47.

The letter noted that Bradshaw did not declare this income during Petitioners’ initial interview. Had Bradshaw disclosed it, Petitioners would have been ineligible for assistance. AR 47. The Housing Authority noted that failure to report income is a terminable offense. In addition, Petitioners were not eligible for the Program in the first place. AR 47. The Housing Authority found that this failure constitutes fraud and a violation of the Program’s family obligations. AR 47. The Housing Authority letter informed Petitioners that a pre-termination hearing was scheduled for February 4, 2019. AR 43, 47.

Petitioners attended the February 4 pre-termination hearing with Housing Specialist Zavala and Housing Inspector Clarke. See AR 22. Bradshaw stated she did not report her income from Hammer and Nails because she felt it was not consistent and because someone at work informed her that she was not going to be put on “the schedule”. See AR 22. This was contradicted by the Hammer and Nails’ statement that Bradshaw worked consistently and received consistent paychecks. See AR 22.

On February 11, 2019, Bradshaw submitted her time sheets for the period of October 27, 2018 to December 27, 2018. See AR 23. The paychecks were consistent with the Housing Authority’s previous information. See AR 23. Bradshaw’s year-to-date gross pay totaled $2,036.15, with an average semi-monthly pay of $339.36 and an annualized income of $8,144. See AR 22. Hammer and Nails confirmed that Bradshaw does not work a lot of hours but works and received paychecks consistently. See AR 22. The addition of Bradshaw’s annualized income to Petitioners wages would have exceeded the maximum limit of $43,650 for Program assistance and they would not have been entitled to assistance had she reported it. See AR 22-23.

On February 7, 2019, the Housing Authority sent Petitioners a letter notifying them of the termination of their assistance effective March 31, 2019 for violation of income limits, failure to accurately report income, and fraud. AR 19-23. The notice informed Petitioners that they owed the Housing Authority a total of $3,862 for receiving assistance to which they were not entitled. AR 23.

Petitioners requested an informal hearing, which the Housing Authority scheduled on March 5, 2019. AR 4. The hearing was rescheduled for March 13, 2019 at Petitioners’ request. AR 5.

3. The Hearing and Decision

The informal hearing was held on March 13, 2019 before Hearing Officer Lance Widman (“Hearing Officer”). AR 2.

On March 15, 2019, the Hearing Officer issued his decision, finding that the preponderance of the evidence showed that Petitioners failed to completely and accurately report family income during their November 7, 2018 eligibility interview and on their October 11, 2018 Tenant Information Form. AR 2. Petitioners acknowledged this failure at the hearing. AR 2. As a result, the Hearing Officer found that Petitioners owe the Housing Authority $3,862 for over-payment of rental assistance and that their assistance would be canceled effective April 30, 2019. AR 2-3.

On March 19, 2019, the Housing Authority informed Petitioners of the Hearing Officer’s decision, that their housing assistance would be terminated effective April 30, 2019, and of their obligation to repay the Housing Authority $3,862. AR 1.

E. Analysis

Petitioners seek a writ of administrative mandate compelling the Housing Authority to set aside its decision upholding the termination of their Section 8 housing assistance benefits.

Petitioners’ Section 8 housing benefits were terminated on the grounds that Bradshaw did not report her income in connection with her employment with Hammer and Nails, which would have made Petitioners ineligible for housing benefits. The Housing Authority considered this failure to be fraudulent and a violation of family obligations under the Program. AR 21.

1. Whether Petitioners’ Omission was Fraudulent

Petitioners argue that the Housing Authority cannot terminate Petitioners’ housing assistance on the basis of fraud because Petitioners did not act with an intent to deceive. Pet. Op. Br. at 6.

HUD regulations define “fraud” as a single act or pattern of actions that constitutes false statement, omission, or concealment of a substantive fact, made with intent to deceive or mislead. 24 C.F.R §792.103. To terminate Section 8 benefits for fraud, a misrepresentation must be made with fraudulent intent and involve information that is material to a participant’s benefits. Crooks v. Housing Authority of City of Los Angeles, 40 Cal.App.5th 893, 903–04. The statement and the intent for that statement are factually distinct. Id. at 900. A concealment or misrepresentation is material if it has a tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed. Id. at 906. Any false material statement is enough, it doesn’t have to actually affect the benefits. Id. at 906. Finally, a Housing Authority has discretion to terminate a participant from the program for an intentional misrepresentation even if it does not amount to fraud. Id. at 903-04.

Petitioners argue that no evidence in the records supports a conclusion that Bradshaw had the requisite intent to commit fraud when she failed to report her wages from Hammer and Nails. Pet. Op. Br. at 6-7. Petitioners assert that Bradshaw’s subsequent disclosure of her employment and speed in correcting her error evidences her lack of deceptive intent. Pet. Op. Br. at 7.

Contrary to Petitioners’ representation, Bradshaw did not correct her omission with speed. In the Tenant Information Form signed on October 11, 2018, Petitioners were informed that they must list income for all family members. AR 41. On November 7,2019, Petitioners also signed the Housing Authority Family Obligations form and the Agreement, both of which affirmatively required that they would report within two weeks any new income source by a household member. AR 93-95. There is no evidence that Petitioners did not read and understand these obligations.

Yet, Bradshaw first reported her income from Hammer and Nails three months after the October 11, 2018 application and two months after the November 2018 eligibility interview. AR 87, 92. As the Housing Authority notes, the timing of this voluntary disclosure supports a conclusion of fraud. Opp. at 9. The volume of Bradshaw’s work at Hammer and Nails in November was the same as in December. Petitioners waited until January 2019 — when Cross was no longer receiving income from Apple One — to report Bradshaw’s work for Hammer and Nails. At that time, Petitioners reported Bradshaw’s income from Hammer and Nails and also reported Cross’s reduction in income.

There was no legitimate reason for Bradshaw to wait until January 9, 2019 to report three months of her Hammer and Nails income. Bradshaw’s scheduled work during November and December following Petitioners’ November 7 Eligibility Interview had the same pattern with no major variations in hours worked. AR 52-54. The plain inference is that when Petitioners initially applied for Section 8 assistance and reported their income on October 11, 2018, they wanted to ensure eligibility by remaining under the maximum income limit of $43,650. Therefore, they omitted Bradshaw’s Hammer and Nails income in their application and only reported it in January 2019 when it could be offset by Cross’s decreased income. This is fraud, or at least intentional misrepresentation.

The evidence is sufficient to support a finding of fraud as a basis for the termination of Petitioners’ housing assistance.[2]

2. Whether Petitioners Violated Their Family Obligation

Violation of a family obligation includes a failure of a participant to supply any information that the PHA or HUD determines is necessary in the administration of the program. 24 C.F.R. §982.551(b)(1).

a. Anticipated Future Income

HUD regulations define annual income as including any income anticipated to be received from a source outside the family during the 12-month period following admission to the voucher program. 24 C.F.R. §5.609(a)(2). The PHA will generally use current circumstances to determine anticipated income for the coming 12-month period. Pet. RJN Ex. A, p.6-7.

Petitioners argue that Bradshaw did not violate a family obligation because she did not expect any future employment with Hammer and Nails, and therefore did not fail to report anticipated income. Petitioners interpret HUD regulations and the Guidelines to mean that they were not required to report Bradshaw’s Hammer and Nails income if she in good faith did not believe she would have further employment with Hammer and Nails. They note that when they filled out their October 11, 2018 Tenant Information Form, Bradshaw did not have any scheduled shifts. Therefore, she reasonably believed that she was not employed. Pet. Op. Br. at 8

This argument is unavailing. As the Housing Authority correctly notes (Opp. at 13-14), Petitioners were informed on numerous occasions that they were required to report all income and timely report changes in income. The Tenant Information Form completed by Petitioners specifically instructed them to list income information for all family members 18 or older, including without limitation, wages/salaries. AR 41. The Housing Authority Family Obligations form and the Agreement both required Petitioners to report within two weeks any new income source by a household member. AR 93-95. These forms did not ask Petitioners to list anticipated income from future employment; they were directed to report all income. Petitioners were therefore obligated to report Bradshaw’s Hammer and Nails income, even if she did not anticipate any future income.

Bradshaw’s representation that she honestly did not anticipate further employment with Hammer and Nails also is unsupported by the weight of the evidence. The sole evidence supporting this position is Bradshaw’s statement that she “was told by someone working with her [that] she wasn’t going to be put on the schedule” for Hammer and Nails. AR 22. This vague statement lacks foundation and is contradicted by a statement from Hammer and Nails stating that Bradshaw worked and received paychecks consistently.[3] AR 22. The statement is corroborated by the fact that Bradshaw returned to work at Hammer and Nails on November 17, 2018, ten days after the eligibility interview. AR 52.

b. Sporadic Income

Housing Authority’s Administrative Plan states that it will generally use current circumstances to project anticipated income for the coming 12-month period. Pet. RJN Ex. A, p.6-7. An exception exists where it is not feasible to anticipate a level of income over a 12-month period, such as seasonal or cyclical income. Ex. A, p.6.

“Temporary, nonrecurring, or sporadic income” is income that is not received periodically and cannot be reliably predicted. For example, the income of an individual who works occasionally as a handyman would be sporadic if future work could not be anticipated and no historic, stable pattern of income existed. Housing Authority will consider the family’s total income in determining whether to count other sporadic income. If, for instance, the family reports little or no other income, Housing Authority may include this income once a pattern of work is established. Pet. RJN Ex. A, p.6-9.

Petitioners argue that Bradshaw’s income from Hammer and Nails was sporadic and she therefore properly excluded it when reporting her income. Petitioners note that, at the time of the eligibility interview, Bradshaw had no upcoming shifts scheduled and only worked nine of the preceding 39 days for a total of 44 hours. AR 67-72. Petitioners allege that there is no way to reliably predict future income based on this information and Bradshaw accurately declared her income as required by law. Pet. Op. Br. at 9; Reply at 4-5.

This is a red herring. Assuming arguendo that that Bradshaw’s income from Hammer and Nails qualifies as sporadic – the Housing Authority argues that it does not – that fact is irrelevant. Petitioners are obligated to report all income. The applicable regulation only states that sporadic income is excluded from the Housing Authority’s determination of a household’s annual income; it does not relieve the applicant from his/her obligation to report all income. 24 C.F.R. §5.609(c)(9). The Guidelines also support this conclusion, noting that the PHA may include such income after establishing a pattern of work. Pet. RJN Ex. A, p.6-9. Sporadic or not, all income must be reported in order for Housing Authority to determine eligibility.

c. Conclusion

Regardless of whether Bradshaw thought her job at Hammer and Nails had ended or that her income was sporadic, Petitioners were required to report it. Their failure to do so constitutes a violation of their family obligations under the Program.

3. Whether the Housing Authority Failed to Proceed in the Manner Required by Law

Petitioners argue that the Housing Authority’s February 7, 2019 pre-termination notice, the March 15, 2019 Hearing Officer decision, and the March 19, 2019 final termination letter are impermissibly vague and do not meet “the required standard to support termination of Petitioners’ federal housing benefits.” Pet. Op. Br. at 11-12. Petitioners’ moving papers do not explain what that standard is. In reply, Petitioners rely on Topanga, supra, 11 Cal.3d at 515 to conclude that these documents do not bridge the analytical gap between the raw evidence and the decision. Reply at 6-7.

The court may swiftly dispose of Petitioners’ arguments concerning the February 7, 2019 pre-termination notice and the March 19, 2019 final termination letter.

The February 7 pre-termination notice (AR 19-23) may be subject to criticism, but the issue would be governed by due process and Petitioners would have no remedy unless they raised the issue to the Hearing Officer. See Pet. RJN Ex. B (Guidebook), p. 15-7 (notice of termination must state reason for termination, effective date, and family’s right to request a hearing). There is no evidence that Petitioners objected to the notice, and they were able to defend their position at the informal hearing.

The March 19, 2019 final termination letter is, as Petitioners’ argue, a cover letter that confirms termination is based on the Hearing Officer decision. AR 1. Reply at 7. The legitimacy of this letter depends on the Hearing Officer decision it attaches.

This leaves the Hearing Officer decision. AR 2-3. Topanga requires decisionmakers to provide a rationale and sufficient findings to support their decisions. The decision-maker must issue findings that give enough explanation so that the parties and the court may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d at 514-15. This Topanga requirement must be tempered by federal law, which requires the hearing officer to issue a written decision, stating briefly the reasons for it. 24 C.F.R. §982.555(e)(6). Combining these requirements, the Hearing Officer’s decision must issue findings that bridge the analytic gap between the evidence and the findings, but may do so in relatively brief form.

Despite this relaxed standard, the Hearing Officer’s decision is defective. It is wholly devoid of any analysis and only makes the conclusory finding that, “based on the preponderance of evidence,” Petitioners failed to completely and accurately report their income to the Housing Authority. AR 2. The Hearing Officer’s decision does not address the issue of fraud, does not explain whether Petitioners would have been eligible had the income been reported, does not explain whether termination is based solely on a violation of family obligations, and most importantly, does not explain what evidence supports his conclusions and why. The Hearing Officer’s decision therefore fails to meet the requirements of Topanga and 24 C.F.R. section 982.555(e)(6).

The Hearing Officer’s failure to make any supported findings is a failure to proceed in the manner required by law and an abuse of discretion. The matter must be remanded for the Hearing Officer to make proper findings. See Usher v. County of Monterey, (1998) 65 Cal.App.4th 210, 220.

F. Conclusion

The petition for writ of mandate is granted in part. A writ shall issue for the Hearing Officer can make findings sufficient to bridge the analytical gap between the evidence and his findings.

Petitioners’ counsel is ordered to prepare a proposed writ and judgment, serve them on the Housing Authority’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for February 27, 2019 at 9:30 a.m.

[1] Petitioners request judicial notice of: (1) Chapter 6 of the Housing Authority’s Administrative Plan for the Program (“Administrative Plan”) (Ex. A); and (2) Chapter 15 of the HUD’s Housing Choice Voucher Guidebook (“Guidebook”) (Ex. B). Respondents object to judicial notice of the Guidebook, because it is not a federal regulation or rule binding on HUD or Housing Authority. See Crooks v. Housing Authority of City of Los Angeles, (“Crooks”) (2019) 40 Cal.App. 5th 893, 908. The fact that the Guidebook is not binding has no bearing on whether it can be judicially noticed. It simply means that the Guidebook is just that – a guide. The requests are granted. Evid. Code §452(c).

Respondents request judicial notice of Chapters 1 through 11 of the Housing Authority’s Administrative Plan (Ex. A). The request is granted. Evid. Code §452(b).

[2] Petitioners argue that the Housing Authority used Bradshaw’s paystub showing that she earned $2,036.15 over 13 weeks to estimate her annual income at $8,144. AR 22. Petitioners argue that this is contrar to the Administrative Plan, which does not permit the use of quarterly wages to project annual income. Pet. RJN, Ex/ A. p. 6-8. Pet. Op. Br. at 11. The Housing Authority responds that the Administrative Plan prohibits projection of quarterly wages to estimate annual income for eligibility purposes. It estimated Bradshaw’s annual income to determine fraud, not eligibility. Opp. at 17. There is no rule or regulation prohibiting the Housing Authority from doing so.

[3]Petitioners challenge the Housing Authority’s reliance on the Hammer and Nails statement, suggesting that it is unreliable due to corporate changes at the business in January 2019. Pet. Op. Br. at 10. As the Housing Authority correctly notes, this allegation of unreliability is unsupported by any evidence, and the hearsay statement meets all requirements of reliability. Opp. at 15-16.

Case Number: 19STCP02317 Hearing Date: January 21, 2020 Dept: 85

Edward G. Everett, et al. v. County of Los Angeles, et al, 19STCP02317

Tentative decision on petition for writ of mandate: granted

Petitioners Edward G. Everett (“Everett”) and Robert Wagner Jr. (“Wagner”) petition the court for a writ of mandate to compel Respondents County of Los Angeles, Los Angeles County Sheriff’s Department (“Department”), and Alex Villanueva, Sherriff of the County of Los Angeles (“Sheriff”)(collectively, “County”) to rescind actions to deduct from Petitioners’ wages and to restore all deducted wages.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioners commenced this proceeding on June 10, 2019, alleging causes of action for traditional mandamus and seeking the remedy of declaratory relief. The verified Petition alleges in pertinent part as follows.

At all times relevant, Everett was employed by the County as a Bonus II Bomb Technician and Arson Investigator and retired on February 15, 2019. At all times relevant, Wagner was employed by the County as a Bonus II Detective and retired on February 29, 2019.

In May 2017 and April 2018, the County informed Petitioners that, due to an alleged result of administrative errors in the implementation of its payroll system in April 2012, they had been overpaid. The County further informed Petitioners that, unless, the alleged overpayments were remitted in full, the County would begin to make unilateral deductions from their wages to recoup the overpayments.

In May 2017, Petitioner received letters stating that the County had mistakenly failed to apply a salary cap and overpaid Petitioners. The letters also stated that, pursuant to Article 18(B) of the Memorandum of Understanding (“MOU”) between the Association for Los Angeles Deputy Sheriffs (“ALADS”) and the County, Petitioners were required to choose between repaying the County for the overpayment or having the amount owed deducted from payroll. Enclosed with the letters was an spreadsheet which set forth the amounts allegedly overpaid by the County. The spreadsheets failed to set forth the particular “Sergeant Item’s sixth step” cap for any given year such that Petitioners could adequately ascertain whether the alleged overpayment figures were accurate.

Beginning May 15, 2018, the County began to make the unilateral deductions. The County has now fully recouped the alleged overpayments from Petitioners. In May 2018, Petitioners filed grievances pursuant to the applicable procedures detailed in the MOU. Those grievances were submitted to arbitration, and arbitrators were selected. On or about March 12, 2019, the County’s counsel informed Petitioners’ counsel that ERCOM did not have jurisdiction over retired members, and therefore Petitioners’ claims could not be arbitrated.

Petitioners contend that Article 18 of the MOU does not authorize Respondents to unilaterally deduct their wages to recoup overpayments. The County also should have discovered, using reasonable diligence, the April 2012 alleged administrative error in the conversion to a new payroll system. Accordingly, Petitioners contend that the statute of limitations bars Respondents from recouping in May 2018 overpayments for a mistake occurring in April 2012. Respondents’ unilateral deduction of overpayments from Petitioner’s wages was a failure to act in conformity with their ministerial duty to adhere to the law.

2. Course of Proceedings

On August 7, 2019, the County demurred to the Petition. The County took the demurrer off calendar on September 25, 2019.

B. Standard of Review

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085. A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” Ibid.

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-584. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance. Id. at 584. Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty or as an abuse of discretion.

C. Governing Law

1. Wage Garnishment Law

The Wage Garnishment Law (codified at CCP section 706.010 et seq.) provides the exclusive procedure for withholding an employees’ earnings, except for an earning assignment order of support. Earnings are defined as compensation payable by an employer to an employee for personal services performed by such employee, whether denominated as wages, salary, commission, bonus, or otherwise. CCP §706.011.

An employer is thus not generally entitled to a setoff of debts owed to it by an employee against wages due to that employee. Barnhill v. Robert Saunders & Co., (1981) 125 Cal.App.3d 1, 6. The wage garnishment law provides the exclusive judicial procedure by which a judgment creditor can execute against the wages of a judgment debtor, except for cases of judgments or orders for support. California State Employee’s Association v. State of California, (“CSEA”) (1988) 198 Cal.App.3d 374, 377. The wage garnishment law applies to public employees. Id. at 377, n.3.

2. Labor Code

It shall be unlawful for any employer to collect or receive from an employee any part of wages paid by the employer to the employee. Labor Code §221.

The provisions of Sections 221, 222 and 223 shall in no way make it unlawful for an employer to withhold or divert any portion of an employee’s wages when the employer is required or empowered so to do by state or federal law or when a deduction is expressly authorized in writing by the employee to cover insurance premiums, hospital or medical dues, or other deductions not amounting to a rebate or deduction from the standard wage arrived at by collective bargaining or pursuant to wage agreement or statute, or when a deduction to cover health and welfare or pension plan contributions is expressly authorized by a collective bargaining or wage agreement. Labor Code §224.

3. MOU

The MOU’s purpose is to promote and provide for harmonious relations, cooperation and understanding between Management and the employees covered herein: to provide an orderly and equitable means of resolving any misunderstandings or differences which may arise, under this Memorandum of Understanding; and to set forth the full and entire understanding of the parties reached as a result of good faith negotiations regarding the wages, hours and other terms and conditions of employment of the employees covered hereby, which understanding the parties intend jointly to submit and recommend for approval and implementation to County’s Board of Supervisors. Stratton Decl. Ex. 1.

Article 18(B) (Overpayments) provides:

“1. Employees will be notified prior to the recovery of overpayments.

2. Recovery of more than 15% of net pay will be subject to a repayment schedule established by the appointing authority under guidelines Issued by the Auditor-Controller. Such recovery shall not exceed 15% per month of disposable earnings (as defined by State law) except however that a mutually agreed-upon acceleration provision may permit faster recovery.” Stratton Decl. Ex. 1.

D. Statement of Facts

1. Petitioner’s Evidence[2]

Petitioners are retired deputy sheriffs who worked for the County. Everett was employed as a Bonus II Bomb Technician and Arson Investigator. He retired on February 15, 2019. Everett Decl. ¶2. Wagner was employed by the County as a Bonus II Detective. He retired on February 29, 2019. Wagner Decl. ¶2.

Petitioners were members of ALADS, which is the recognized employee organization representing sworn non-management peace officers employed by the Department and District Attorney’s Office with regard to all matters concerning wages, hours and working conditions. Hsieh Decl. ¶2. In December 7, 2016, Lieutenant Daniel V. Lopez (“Lopez”), on behalf of the Sheriff, sent a letter to Derek Hsieh, Executive Director of ALADS (“Hsieh”), notifying Hsieh that “During a recent audit conducted by the Department’s Personnel Administration Bureau, it was discovered that 155 Bonus II deputies at the top of Bonus II pay were being overpaid.” Hsieh Decl. ¶4, Ex. A. The letter stated that the bonus pay would be adjusted beginning with the December 15, 2016, payroll check for the affected Bonus II deputies. Hsieh Decl. Ex. A. Lopez indicated that it was unclear whether the County would seek reimbursement for the overpayments. Hsieh Decl. Ex. A. Enclosed with the December 7, 2016 letter was a draft letter to be sent to affected deputies. Hsieh Decl. Ex. A. Lopez sent out a revised letter on December 8, 2016. Hsieh Decl. ¶5, Ex. B.

Hsieh spoke with County personnel Greg Nelson (“Nelson”) and Kim Unland (“Unland”) about whether they were going to seek overpayment reimbursements. Hsieh Decl. ¶6. Initially it was the Department’s position that it probably would not recoup the money because it was relatively small in nature, had occurred some time ago, and the Department was more focused on fixing what they thought was the issue on a go-forward basis. Hsieh Decl. ¶6.

In response to Lopez’s December 8 revised letter, Rebecca Bueno (“Bueno”), a Labor Relations Specialist for ALADS, sent Lopez a December 13, 2016 letter with assistance from Hsieh. Hsieh Decl. ¶7, Ex. C. Bueno’s letter requested pay tables for all affected members, their bonus pay prior to the revision, and what their pay would be after the revision. Ex. C. The letter also demanded that the Department cease and desist from making any payroll changes to affected members until the parties had the opportunity to meet on the issue. Ex. C. A subsequent meeting did not resolve the issue. Hsieh Decl. ¶8.

Around the same time, Petitioners received a letter from Acting Captain Richard J. Harpham (“Harpham”), on behalf of the Sheriff, regarding a Bonus II Overpayment. Everett Decl. ¶3, Ex. A; Wagner Decl. ¶3. Harpham’s letter stated that, during an audit, it was discovered that Bonus II deputies at the top of Bonus II pay were being overpaid, and that such overpayment occurred due to a change in the calculation of bonus percentages during the Countywide implementation of the eHR system. Everett Decl. Ex. A; Wagner Decl. ¶3. Harpham’s letter noted that it was unclear if the County would seek reimbursement for the overpayments. Everett Decl. Ex. A; Wagner Decl. ¶3.

In May 2017, Petitioners received a letter from Captain Kimberly Unland (“Upland”), which noted that Petitioners had been overpaid due to an administrative error and their salaries exceeded the Sergeant item’s sixth step. Everett Decl. ¶5, Ex. B; Wagner Decl. ¶5. Unland’s letter gave Petitioners two repayment options: (a) immediately pay the alleged amount in full, or (b) repay the amount through payroll deductions beginning with the June 15, 2017 payday. Everett Decl. Ex. B; Wagner Decl. ¶5. The letter stated that if the Petitioners did not respond by June 1, 2012, the County would begin unilaterally deducting from the deputies’ paychecks. Everett Decl. Ex. B; Wagner Decl. ¶5. Attached to each Petitioners’ letter was an “Overpayment Detail” which allegedly set forth the amounts he had been overpaid. Everett Decl. Ex. B; Wagner Decl. ¶5.

Between May 17 and August 2, 2017, the parties communicated on the issue and ALADS sent email blasts to its members. Hsieh Decl. ¶¶ 9, 11, Exs. D-F; Wexler Decl. ¶3, Ex. A.

On August 2, 2017, the County issued a letter to affected employees stating that it had suspended any efforts to collect funds from affected employees for 90 days so the parties could discuss a potential resolution. Everett Decl. ¶7, Ex. C; Wagner Decl. ¶6.

On October 19, 2017, ALADS sent an email blast to its members. Hsieh Decl. Ex. G. The email noted that the County had not responded to ALADS’ arguments and continued to suspend all collection efforts. Hsieh Decl. ¶12, Ex. G.

On April 2, 2018, Captain Unland sent new letters to affected employees stating that the County would soon deduct the wages of the employees. Everett Decl. ¶8, Ex. D; Wagner Decl. ¶7. ALADS then sent out an email blast to affected deputies stating that if affected members elected either option for repayment offered by the County, ALADS might be significantly limited in its ability to assist them in challenging the claimed overpayment. Hsieh Decl. ¶14, Ex. H.

On May 1, 2018, ALADS sent an email blast to affected members summarizing the dispute. Hsieh Decl. Ex. I. The blast also noted that Bonus II deputies who had retired were in a different situation because the County could not unilaterally deduct from their wages and would have to prove up the indebtedness through some sort of process. Hsieh Decl. ¶16.

Beginning May 15, 2018, the County began unilaterally deducting wages from affected employees. Everett Decl. ¶9; Wagner Decl. ¶8. To date, neither Petitioner understands how the County computed the “Should Be Paid” column on the Overpayment Detail that was sent to the individual deputies. Everett Decl. ¶9; Wagner Decl. ¶8. The County has also not clearly explained to either retired deputy exactly how it came up with the “Should Be Paid” column on the Overpayment Detail. Everett Decl. ¶9; Wagner Decl. ¶8. Neither Everett nor Wagner knows whether the amounts stated in the Overpayment Detail were actually overpaid by the County. Everett Decl. ¶9; Wagner Decl. ¶8.

2. Respondents’ Evidence[3]

The Enterprise Human Resources System (“eHR”) was implemented by the County on April 1, 2012. Ramirez Decl. ¶3. The eHR system was adopted County-wide, and was designed to be an integrated, networked system which allowed the user to access various databases in a flexible and integrated manner. Ramirez Decl. ¶3. The prior system was known as “CWTAPPS.” Ramirez Decl. ¶3.

Following the implementation of eHR, the Department discovered that there was a slight increase in salary paid out to certain classes of employees at the time the data was converted from the prior system. Ramirez Decl. ¶4. Specifically, the top step of Deputy Sheriff Level II Bonus positions was converted from 23.5% to 26.4538%, resulting in an overstated salary that exceeded the sixth step of the Sergeant’s salary, the maximum salary allowed for the Deputy Sheriff Level II Bonus position under the MOU. Ramirez Decl. ¶4; Unland Decl. ¶3; Chevalier Decl. ¶5. Regular earnings were not the only component of compensation affected by the error. Ramirez Decl. ¶5. Other elements of compensation are based upon the amount of regular earnings — overtime and leave payouts — and these other forms of compensation were also overpaid. Ramirez Decl. ¶5.

The Department spent significant time and personnel hours to determine which employees were affected and how much they were overpaid. Unland Decl. ¶4. The Department is required to recoup monies that it has overpaid under the California Constitution, which prohibits the gift of public funds. Unland Decl. ¶5.

The County Auditor Controller’s Office calculated the overpayments and established a repayment schedule for each affected employee. Banuelos Decl. ¶6. On May 12, 2017, notice was provided to each affected employee, and those letters were signed by Unland, who was the head of Personnel Administration. Banuelos Decl. ¶6; Unland Decl. ¶2. Those letters were sent to all affected employees holding the Deputy Sheriff Level II Bonus position, including Everett and Wagner. Banuelos Decl. ¶7; Unland Decl. ¶7. The letters explained the issue, and also provided the amounts of salary overpaid to each employee. Banuelos Decl. ¶7, Exs. 1, 2; Unland Decl. ¶7, Exs. 1, 2.

Each employee’s letter enclosed a spreadsheet prepared by the Auditor Controller’s Office describing each incident of overpayment to the employee. Banuelos Decl. ¶8, Exs. 1, 2. On a line-by-line basis, the spreadsheet detailed the relevant pay period (“accrual date”), pay event (the code as reflected on the employee’s pay detail accompanying the pay check), the description of the compensation type (“description”), the amount actually paid (“was paid”), the amount that should have been paid (“should be paid”), and the specific amount of each overpayment in dollars and cents (“overpaid”). Banuelos Decl. ¶9, Exs. 1, 2. At the end of the spreadsheet, each employee was given the full amount due based upon each employee’s specific circumstances. Banuelos Decl. ¶9, Exs. 1, 2.

The recoupment of these overpayments was made in accordance with MOU Article 18. Overpayments due to administrative errors occasionally occur and the Department uses the recoupment procedures set forth in Article 18, which also governs situations where the employee is underpaid. Banuelos Decl. ¶10.

All affected employees, including Wagner and Everett, were provided with two repayment options. Banuelos Decl. ¶11. The first option (“Option A”) was an option to pay the amount in full. Banuelos Decl. ¶11. The second option (“Option B”) allowed each employee to repay the amount through payroll deductions for a total of 23 pay periods. Banuelos Decl. ¶11. The specific dollar amounts were detailed in each employee cover letter. Banuelos Decl. ¶11. If the employee did not elect an option, or failed to respond by June 15, 2017, the Department intended to proceed under Option B, with the first deduction to occur with the June 30, 2017 pay period. Banuelos Decl. ¶11.

Each employee was also given the opportunity to question the numbers or to seek additional information and were provided with the relevant contact information. Banuelos Decl. ¶12. At no time did Petitioners make any inquiry regarding any issue relating to the repayment. Banuelos Decl. ¶12.

The Department also considered cases of hardship and offered modifications to the repayment schedule as necessary on a case by case basis. Banuelos Decl. ¶13. The overpayment recovery complied with the MOU and the guidelines of the Auditor-Controller. The recovery did not exceed 15% per month of disposable earnings (as defined by State law) in accordance with the provisions of the MOU. Banuelos Decl. ¶14.

ALADS representatives met with Department representatives to discuss the recoupment and ALADS requested the Department delay action until they had an opportunity to confer with its affected members. Banuelos Decl. ¶16; Unland Decl. ¶8. As a result of this request, on August 2, 2017, Unland sent a letter stating that the process would be temporarily suspended. Banuelos Decl. ¶17, Ex. 3; Unland Decl. ¶8, Exs. 3, 4.

Following the expiration of the stop period, the Department determined that it would go forward with recoupment process under the applicable MOU provisions. Banuelos Decl. ¶19; Unland Decl. ¶9; Chevalier Decl. ¶6. On April 2, 2018, the Department sent a second repayment letter to affected employees mirroring the first. Banuelos Decl. ¶19; Unland Decl. ¶9. The following was sent to each employee in this transmittal: (1) The cover letter detailing repayment options to the employees and amounts; (2) the same detail prepared by the Auditor Controller, which was enclosed with the first letter, (3) memoranda explaining the recoupment process, and (4) the relevant salary schedules. Banuelos Decl. ¶19, Exs. 5, 6; Unland Decl. ¶9, Exs 5, 6.

Neither Everett nor Wagner made an election to fully compensate the County for the overpayments in one lump sum (which was “Option A”). Banuelos Decl. ¶20. As such, both were deemed to have selected Option B. Banuelos Decl. ¶20. Automatic salary deductions were made for both employees. Banuelos Decl. ¶20.

The automatic deductions for Wagner commenced with his May 15, 2018 check and ended with his March 15, 2019 check, a total reimbursement to the County in the sum of $2,964,74. Banuelos Decl. ¶20, Ex. 7. No further reimbursements are being asked of Wagner. Banuelos Decl. ¶20.

The automatic deductions for Everett commenced with his May 15, 2018 check and ended with his February 28, 2019 check, for a total reimbursement of $2,881,30. Banuelos Decl. ¶21, Ex. 8. No further reimbursements are being asked of Wagner. Banuelos Decl. ¶21.

Everett filed a grievance on May 30, 2018 regarding his claim that he did not owe any reimbursement for overpayments he received in the course of his employment. Chevalier Decl. ¶7, Ex. 1. On May 31, 2018, the Department and Everett agreed to waive Step 1 of the grievance process and move it to the Executive Level at Step 2. Chevalier Decl. ¶8.

No action was taken at Step 2 because Everett’s grievance was combined with other employee grievances regarding the same issue in an arbitration filed by ALADS under pertinent MOU provisions. Chevalier Decl. ¶9. ALADS filed the arbitration demand with ERCOM on or about July 23, 2018. Chevalier Decl. ¶9, Ex. 2. Everett’s arbitration demand was identified as ALADS ARB No. 37. Chevalier Decl. ¶9. These arbitrations became identified collectively as AI.ADS ARBS 1-107(B). Chevalier Decl. ¶9. ERCOM moved the demand for arbitration to hearing on July 30, 2018 and there is no record that Everett withdrew or dismissed his grievance. Chevalier Decl. ¶¶ 10-11.

On May 17, 2018, Wagner filed a grievance related to his claim that the was not overpaid during the course of his employment and did not owe reimbursement to the County. Chevalier Decl. ¶12, Ex. 3. On May 22, 2019, the parties agreed to waive the first step in the grievance process and to move it to Step 2, the Executive Level. Chevalier Decl. ¶13. There was no action taken on the Executive Level because Wagner’s grievance was addressed in the same arbitration proceeding filed by ALADS for other similarly situated employees. Chevalier Decl. ¶14. Wagner’s arbitration was identified as ALADS ARB No. 59 and his status as an interested party requesting arbitration is also reflected in the arbitration demand tiled by ALADS. Chevalier Decl. ¶14, Ex. 2. There is no record that Wagner withdrew or dismissed his grievance. Chevalier Decl. ¶15.

On November 21, 2019, Arbitrator Byron Berry signed his decision in ARB 1-107(B)-9, denying the grievance ALADS had filed on behalf of another grievant. Goodman Decl. ¶5, Ex. 1.[4]

ALADS filed another mandamus action on the same issue, which the court dismissed in favor of the County on February 20, 2019. Resp. RJN Ex. 2. ALADS subsequently appealed the judgment. Resp. RJN Ex. 3.

3. Reply Evidence

Claims for damages on behalf of Petitioners were filed with the County on May 14, 2019. Ross Decl. ¶¶ 3-4, Exs. A-B. Counsel for Petitioners received Notices of Receipt from the County as to the claims. Ross Decl. ¶¶ 6-8, Exs. C-D.

On May 15 and 17, 2019, the County sent a letter to Petitioners’ counsel informing them that certain claims filed by Petitioners were being rejected as untimely while others were being investigated. Ross Decl. ¶¶ 9-10, Exs. E-F.

A judgment of dismissal was entered in ALADS I on February 20, 2019. Kalinski Decl. ¶5.

On February 5, 2019, counsel for Petitioners emailed the County’s counsel and asked when the first arbitration hearing in the matter could be heard. Kalinski Decl. ¶6. On March 12, 2019, counsel for the County responded that the County’s position is that it cannot consent to ERCOM’s jurisdiction over retirees. Kalinski Decl. ¶6, Ex. B.

E. Analysis

Petitioners seek a writ of mandate directing Respondents to rescind their actions deducting overpayments from Petitioners’ wages and directing them to restore all deducted wages. Petitioners argue that Respondents are not permitted to unilaterally deduct from employee wages and, even if permitted, the deductions are limited by statute of limitations.

Respondents assert that Petitioners do not fulfill the requirements for traditional mandamus because they cannot demonstrate that the County has a ministerial duty to act in a certain manner and that they have a beneficial right to performance of that duty.

1. Procedural Issues

a. Government Claims Act

Respondents note that Petitioners both have retired and fully repaid the County and argue that damages now are their only remedy. Yet, Petitioners have failed to establish compliance with the Government Claims Act (“Claims Act”). Even if this mandamus petition is considered a wage claim, it is subject to the Claims Act if there is a local ordinance so stating. Govt. Code §§ 905(c), 935. The County has such an ordinance. Los Angeles County Code §§4.04.020-030. Respondents argue that Petitioners have not adequately pled compliance with the Claims Act, and even if they have, their claims would accrue continually, and a claim would have to be submitted within six months of each salary withdrawal. Opp. at 7, 11.

The Government Claims Act (“Claims Act”) bars any suit for money or damages against a public entity on a cause of action for which a claim is required to be presented until a written claim has been presented and acted upon or has been deemed rejected. Govt. Code §§ 905, 910, 911.2, 945.4; City of Stockton v. Superior Court, (2007) 42 Cal.4th 730, 738.

Petitioners do not dispute that they must comply with the Claims Act; they argue that they have complied. Reply at 7-8.

Everett and Wagner both filed claims with the County on May 20, 2019, and the County acknowledged receipt of these claims that same day. Ross Decl. Exs. A-D. Equitable tolling applies to the timeliness of their Claims Act compliance while Petitioners pursued the arbitration process. See Baillargeon v. Department of Water & Power, (1977) 69 Cal.App.3d 670, 683. That process ended, at the earliest, with County counsel’s March 12, 2019 letter informing Petitioners that the County would not consent to ERCOM’s jurisdiction over retirees. Kalinski Decl. ¶6, Ex. B. Since Petitioners’ claims were equitably tolled during the entire repayment period, the continuing accrual of their claims during that tolling period has no bearing on the timeliness of their May 20, 2019 claim. A single timely claim also is permissible for the continually accrued claims. Dillon v. Board of Pension Commissioners of City of Los Angeles, (1941) 18 Cal.2d 427, 434.

Petitioners complied with the Claims Act.

b. Exclusive Concurrent Jurisdiction

Respondents argue that the doctrine of exclusive concurrent jurisdiction bars the instant action because it is the third proceeding on the same issues. Opp. at 15.

“Under the rule of exclusive concurrent jurisdiction, when two superior courts have concurrent jurisdiction over the subject matter and the parties, the first court to assume jurisdiction has exclusive and continuing jurisdiction until such time as all necessarily related matters have been resolved.” Lawyers Title Ins. Corp. v. Superior Court, (1984) 151 Cal.App.3d 455, 460. The remedies in the suits need not be precisely the same; rather, the issues in the two proceedings must be substantially similar and the suits must have the potential to result in conflicting judgments. County of Siskiyou v. Superior Court, (2013) 217 Cal.App.4th 83, 91.

As Petitioners correctly note (Reply at 14), the doctrine of exclusive concurrent jurisdiction cannot apply because it requires two superior courts to have concurrent jurisdiction. ALADS I is on appeal and no superior court has jurisdiction of that case. The doctrine of exclusive concurrent jurisdiction does not apply.[5]

2. Respondents Followed Article 18(B)

Petitioners do not deny that they were overpaid and do not dispute the calculation for repayment. They merely contend that they were confused by the payroll system, which is complicated, and that the spreadsheet provided was cryptic. Opp. at 9-10.

Respondents rely on MOU Article 18 to permit them to recoup salary overpayments by deducting such amounts from employee wages. Opp. at 10.

Article 18 is entitled “Paycheck Errors”. Article 18(A) concerns paycheck errors for the underpayment of compensation. Article 18(B) is entitled “Overpayments” and provides:

“1. Employees will be notified prior to the recovery of overpayments.

2. Recovery of more than 15% of net pay will be subject to a repayment schedule established by the appointing authority under guidelines Issued by the Auditor-Controller. Such recovery shall not exceed 15% per month of disposable earnings (as defined by State law) except however that a mutually agreed-upon acceleration provision may permit faster recovery.” Stratton Decl. Ex. 1.

Petitioners argue that Article 18(B) does not authorize deductions for overpayments without a legal proceeding. Nor does it waive any applicable statute of limitations. Article 18(B) states that employees will be notified prior to recovery of overpayments, but it does not provide that the County may do so without a legal proceeding. Article 32 provides that any waiver of legal rights must be expressly stated, and Article 18(B) is subject to the Wage Garnishment Code and Labor Code. Pet. Opp. Br. at 6.

As Respondents argue, contract principles of interpretation apply to the interpretation of an MOU. Vallejo Police Officers Assn. v. City of Vallejo, (2017) 15 Cal.App.5th 601, 613. The basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contracting, and the words should be understood in their ordinary and popular sense. Franco v. Greystone Ridge Condominium, (2019) 39 Cal.App.5th 221. Article 18(B) gives the County the authority to recover paycheck overpayments, and must be construed in conjunction with Article 18(A) concerning underpayments. Collectively, the Article 18 provisions show a mutual intent to allow the County to correct paycheck errors without undergoing a cumbersome legal process. Opp. at 10.[6]

Petitioners also argue that the County’s deductions are barred by CCP section 338(d)’s statute of limitations. In the exercise of reasonable diligence, the County could have discovered the error when it occurred in 2012. Pet. Op. Br. at 18. Petitioners assert that the County’s deductions from their paychecks long after 2012 are barred by the three-year statute of limitations. Pet. Op. Br. at 18-19.

Respondents correctly respond that the overpayment deductions were authorized by the MOU and that CCP section 338(a) is a statute of limitations filing an “action”, which is a lawsuit. CCP §22. Opp. at 12. No judicial proceeding was involved, and the statute of limitations does not apply.

3. The Wage Garnishment Law and Labor Code Section 221

Petitioners’ principal argument is that Article 18(B) does not trump the Wage Garnishment Law and Labor Code[7] section 221, the protections of which cannot be waived. Therefore, the County’s unilateral deductions from Petitioners’ salaries violate its ministerial duty embodied in section 221. Pet. Op. Br. at 11-12; Reply at 12-13.

Petitioners point out that, with an inapplicable exception, the Wage Garnishment Law provides the exclusive procedure for withholding an employee’s earnings. An employer is thus generally not entitled to set off debts owed by an employee against his or her wages — permitting an employer to do so would let the employer accomplish what another creditor could do by attachment. Banhill v. Robert Saunders & Co. (1081) 125 Cal.App.3d 1, 6. Pet. Op. Br. at 11-12.

In support of the Wage Garnishment Law, section 221 (Repayment of Wages to Employer) provides: “It shall be unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee.” The wage garnishment law applies to public employees. California State Employees’ Assn. v. State of California, (“CESA”) (1988) 198 Cal.App.3d 374, 377.

Section 224 states an exception that the provisions of Sections 221, 222 (Withhold of Part of Wage) and 223 (Payment of Less than Statutory or Contractual Wage Scale) “shall in no way make it unlawful for an employer to withhold or divert any portion of an employee’s wages when the employer is required or empowered so to do by state or federal law or when a deduction is expressly authorized in writing by the employee to cover insurance premiums, hospital or medical dues, or other deductions not amounting to a rebate or deduction from the standard wage arrived at by collective bargaining or pursuant to wage agreement or statute, or when a deduction to cover health and welfare or pension plan contributions is expressly authorized by a collective bargaining or wage agreement.” (emphasis added).

a. Berkeley Council

Petitioners rely on Berkeley Council, in which PERB addressed an expired collective bargaining agreement (“CBA”) between a school district and teachers union. Pet. RJN Ex A. The expired CBA contained a provision permitting the district to recoup erroneous overpayments in salary by withholding from the employee’s wages, and the district demanded that the same provision be included in the parties’ new CBA. Ex. A, p. 2. The union contended that the proposed provision waived employee rights and therefore was a non-mandatory subject of bargaining. Ex. A, p. 2.

PERB relied on CSEA, which it described as concerning a state effort to recoup salary overpayments to individual employees. The state sent the employees a letter notifying them of the amount of their overpayment, described a schedule for deduction the payments from their wages, and offered a one-week opportunity to negotiate a different schedule based on hardship. Ex. A, p. 2. The CSEA court ruled that the state’s statutory policy of protecting employee wages took precedence. CSEA quoted an earlier case which noted that the policy underlying the state’s wage exemption statutes is to ensure that a debtor will retain sufficient money to maintain a basic standard of living, the pre-judgment attachment statutes are governed by due process concerns, and an employer’s setoff of debt would defeat the due process concerns for statutory attachment. Ex. A, p.4.

PERB concluded that the expired CBA was similar to the overpayment issue in CSEA, and any distinction that the district proposed a contract provision while the state employer in CSEA relied on a statutory recoupment procedure was ineffectual. Ex. A, p. 4.

PERB also considered the district’s reliance on Social Services v. Board of Supervisors, (“Social Services”) (1990) 222 Cal.App.3d 279, to contradict CSEA. Ex. A, p. 5. PERB noted that Social Services involved a wage deduction reimbursing a county for premium increases in employee health insurance coverage while negotiations were pending under the Meyers-Milias-Brown Act over those premium increases. Ex. A, p. 5. After the board of supervisors decided that the employees should repay the county for the 14 months of premium increases, the union challenged the monthly repayment deductions. Ex. A, p. 5.

According to PERB, the Social Services court acknowledged the state policy articulated in CSEA against attaching employee wages, but it ruled that wage deductions for increased health insurance premiums was expressly permitted by section 224. Ex. A, p.6. The Social Services court held that, since section 224 was a specific statute permitting the recoupment of insurance premium, the deductions were not prohibited by the attachment and wage garnishment laws once the board of supervisors imposed the recoupment obligation. Ex. A, p. 6-7. The Social Services court also rejected the argument that the union could not waive its members rights. While in general unions lack the capacity to waive employees’ statutory or constitutional rights, section 224 expressly authorizes unions to do so. Ex. A, p.7. Therefore, the payroll deductions were not extra-judicial seizures of the type condemned in CSEA. Ex. A, p. 7.

PERB concluded that Social Services permits collectively bargained deductions from wages, but only for the limited purposes authorized in section 224. Ex. A, p. 8. Social Services does not authorize employers and unions to collectively bargain for additional exceptions to the state policy confirmed in CSEA against pre-judgment attachment of wages. Ex. A, p. 8. PERB stated that the only exception to the legal requirement that an employee may authorize and employer to reduce his or her wages to recoup monies owed to the employer, and that a union cannot do so through a CBA or wage agreement, is a deduction for health and welfare or pension plan contributions. Ex. A, p. 9.

Respondents attempt to distinguish Berkeley Council as a case where the local government insistence on renewing a previous recoupment provision over union objection was a mandatory or non-mandatory subject of bargaining, and hence whether the labor practice was unfair. Ex. A, p. 16. Opp. at 13. That certainly was one of the issues, but Berkeley Council plainly held that, consistent with Social Services, the only permitted collectively bargained deduction from wages is for the limited purpose authorized in section 224. Ex. A, p. 8.

Respondents point out that Berkeley Council is not binding on the court. This is true, but PERB decisions are persuasive authority on legal matters that are within its expertise. City of Palo Alto v. Public Employment Relations Bd., (2016) 5 Cal.App.5th 1271, 1287–88. PERB’s construction of a statute within its field of expertise is given deference and will be followed unless clearly erroneous. The issue of the collective bargaining authority of a public employer and a public employee union under state law is a matter within PERB’s jurisdiction and expertise. Therefore, PERB’s decision carries significant weight.

b. Respondents’ Arguments

Respondents argue that the Labor Code does not apply to public employees unless a statute specifically states so and section 221 does not apply to public employers and their employees. Opp. at 14-15.

Petitioners demonstrate that section 221 does apply to public employers. Both Berkeley Council and section 220’s express exemption for public employers show otherwise. Section 220 lists the provisions of the Labor Code that are inapplicable to public employers (sections 200-11, 215-19). The list does not include section 221. Furthermore, Respondents’ cited cases — Social Services and Huimin Song v. County of Santa Clara, (“Huimin Song”) (9th Cir. 2017) 705 F.Appx. 492 — implicitly apply section 221 to public employers; there would be no need to find a section 224 exemption of section 221 did not do so. Reply at 10.

Respondents argue that Article 18(B) is consistent with the Wage Garnishment Law’s purpose of ensured that a debtor will retain enough money to maintain a basic living because there is a 15% limit on any recovery from net salary. Respondents rely on Social Services, supra, 222 Cal.App.3d at 287, and note that it recoupment process that was imposed upon employees through the county’s retroactive deduction from payroll for employees who elected dependent coverage. Id. at 283. Opp. at 11-13. To some extent this is true, but that does not mean Article 18(B) can replace the Wage Garnishment Law absent some statutory authority to do so.

Respondents argue that section 224 is an exception to section 221 and permits an employer to engage in payroll deductions for “other deductions…arrived at by collective bargaining or pursuant to wage agreement or statute.” Article 18 is a “wage agreement”. A “wage” is anything promised as part of the compensation for employment. Davis v. Farmers Insurance Exchange, (2016) 245 Cal.App.4th 1302, 1331, n.20 (citation omitted). Under the MOU, the County never promised Petitioners any compensation over that paid to Sergeants on the sixth step. Therefore, the overpayment was not wages; Petitioners were never paid any less than their stated wages under the MOU. Opp. at 14-15.

As Petitioners note (Reply at 11), Respondents fail to address Sciborski v. Pacific Bell Directory, (2012) 205 Cal.App.4th 1152, 1166. There, a jury found that an employer violated section 221 by deducting approximately $19,000 in wages from an employee to recover a $36,000 commission paid to her. Id. at 1152. The court noted that section 221 prohibits an employer from deducting an employee’s wages, even as a setoff for amounts clearly owed by the employee. Id. at 1166. Section 221’s rights are non-negotiable and cannot be waived by the parties. Id. at 1166. In enacting section 221, the legislature prohibited employers from using self-help to take back any party of “wages theretofore paid” to an employee, except in narrowly defined circumstances provided by statute. Id. (citation omitted). Because of this strong public policy, an employer’s right to recoup an advance not yet earned as an exception under section 224 generally requires a showing that the employee agreed in writing to the specific condition and the employer’s right to recoup under stated conditions. Id. at 1167.

Generally, a collective bargaining agreement may not waive statutory rights which arise from an extraordinarily strong and explicit state policy. Social Services, supra, 222 Cal.App.3d 279, 287. Sciborski interprets section 224 as permitting recoupment of monies when required by state or federal law and in three listed situations: (1) when the employee expressly authorizes in writing a deduction to cover insurance premiums, hospital or medical dues, (2) other deductions not amounting to a rebate or deduction from the standard wage arrived at by collective bargaining, wage agreement, or statue, and (3) when a deduction to cover health and welfare or pension plan contributions is expressly authorized by a collective bargain or wage agreement. Thus, section 224 expressly authorizes agreements between public employees and their employers for the payment of health and welfare or pension plan contributions through payroll deductions. Id. Otherwise, section 221 rights are non-negotiable and non-waivable. Id. at 1166.

Respondent’s rely solely on section 224’s exception for “other deductions not amounting to a rebate or deduction from the standard wage arrived at by collective bargaining, wage agreement, or statue”. The court accepts Respondents’ argument that Article 18 of the MOU is a wage agreement. The problem with Respondents’ argument is that, while they may reasonably argue that the overpayments to Petitioners were not wages – although they were paid as wages — the County deducted the overpayment from wages. Hence the County’s deduction of the overpayments is a “deduction from Petitioners’ standard wage”. See also Berkeley Council, Pet. RJN Ex. 1, p. 9. (“The only exception [to section 221] permitted [by section 224] solely on the basis of an express authorization in a collective bargaining or wage agreement is a deduction for health and welfare or pension plan contributions.”).

Respondents contend that their position is stronger than Social Services, which is controlling, because the county in Social Services compelled a result while the parties’ existing MOU authorizes deductions for overpayments in Article 18(B). Social Services is a case concerning reimbursement for health care costs and it relied on section 224’s exemption for “other deductions…arrived at by collective bargaining or pursuant to wage agreement or statute…” Respondents conclude that Article 18 is a wage agreement exempt from section 221 by section 224, and the Ninth Circuit determined as much in Huimin Song, supra, 705 Fed. Appx. at 495.[8]

Respondents’ reliance on Social Services is unavailing. As found by PERB in Berkeley Council and argued by Petitioners, Social Services is distinguishable because it only permitted payroll deductions for health care costs — an express exception in section 224 — whereas the instant dispute involves overpayment of wages. Pet. Op. Br. at 14-15; Reply at 11-12. Although Respondents argue that Section 224 should be interpreted more broadly to allow for all deductions arrived at by collective bargaining or pursuant to a wage agreement or statute, this interpretation is directly contradicted by PERB precedent. [9]

In sum, the general prohibition of section 221 applies to the overpayments, section 224 provides no applicable exception, and Respondents have a ministerial duty to comply with section 221 by pursuing the collection of overpayments through the Wage Garnishment Law.[10]

4. Home Rule Doctrine

Respondents argue that Section 221 is inapplicable under the Home Rule Doctrine. Under the Home Rule Doctrine, the County has authority to establish conditions of employment, including compensation, and did so through the MOU. Dimon v. County of Los Angeles, (2008) 166 Cal.App.4th 1276, 1283. The Home Rule Doctrine dictates that local governing bodies such as the County Board of Supervisors, and not the state legislature, have a right to “provide ‘for the number, compensation, tenure and appointment of employees.’” Id. at 1282 (citations omitted). The compensation of employees falls within the “County’s exclusive constitutional purview.” Curcini v. Couniy ofAlameda (2008) 164 Cal.App.4th 629, 645.

The County can choose to address compensation either by ordinance or resolution which includes entering into an MOU with a union to cover compensation. Dimon, supra, 166 7 Cal.App.4th at 1284 (MOU approved by the Board of Supervisors which included provisions for meal periods differed from, and precluded application of Labor Code provisions). Similarly, section 221 did not prevent the County from bargaining for different provisions in the MOU for recoupment by deducting overpayment of wages. Petitioners’ allegations that the County must follow section 221 are incorrect. Opp. at 13-14.

The Home Rule Doctrine provides that local governing bodies, not the state legislature, have a right to provide for the number, compensation, tenure, and appointment of employees. Dimon, supra, 166 Cal.App.4th at 1282. However, the instant dispute does not concern the compensation of County employees, but rather the County’s unilaterally deduction from employee wages. Pet. Op. Br. at 17-18; Reply at 13. Furthermore, the protections of the Wage Garnishment Law and section 224 are matters of statewide concern which apply even to charter cities and counties and the legislature may regulate such matters over local regulations. See Baggett v. Gates, (1982) 32 Cal.3d 128, 137-38 (Police Officer Bill of Rights Act does not interfere with charter cities setting of peace officer compensation).

The Home Rule Doctrine does not exempt the County from section 221.

F. Conclusion

The Petition for writ of mandate is granted. Petitioners are entitled to mandamus directing Respondents to rescind their actions deducting overpayments from Petitioners’ wages and directing them to restore all deducted wages. Respondents will have to pursue the overpayments through small claims actions.

Petitioners’ counsel is ordered to prepare a proposed judgment and writ, serve them on Respondents’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for February 27, 2020 at 9:30 a.m.

[1] The parties did not include exhibit tabs with their courtesy copies and their counsel is directed to do so in all future writ proceedings.

[2] Petitioners request judicial notice of: (1) Berkeley Council of Classified Employees v. Berkeley Unified School District, (“Berkeley Council”) (2012) PERB Decision No. 2268 (Ex. A); and (2) Preamble and Article I of the Charter of the City of Oakland (Ex. B). The request for Exhibit A is granted. Evid. Code §452(b). While Oakland’s Charter would be subject to judicial notice if it were relevant, it is not. The request is denied for Exhibit B.

[3] Respondents request judicial notice of (1) the second amended complaint in ALADS I (Ex. 1); (2) the judgment of dismissal in ALADS I, (Ex. 2); and (3) the notice of appeal in ALADS I (Ex. 3). The existence of the requested documents, but not the truth of their contents, is judicially noticed. Evid. Code §452(d); Sosinsky v. Grant, (1992) 6 Cal.App.4th 1548, 1551.

[4] Petitioner moves to strike the Goodman declaration and its exhibit because an arbitrator’s decision for another grievant does not bind either them or this court. This is not a reason to strike the declaration. As the County argues, it is evidence of an ongoing arbitration process. The motion is denied.

[5]Although not argued by Respondents, this case is not subject to a stay as a plea in abatement either. The court judicially notices Department 82’s January 29, 2019 ruling in ALADS I, and the basis for that ruling – and the issue on appeal – was that Petitioners must exhaust their administrative remedies by pursuing arbitration. Petitioners did pursue arbitration, only to be rebuffed by the County’s assertion that ERCOM does not have arbitration jurisdiction for retired employees. While Petitioners have not formally withdrawn from the arbitration process, Respondents do not seek to compel them to do so. In any event, this Petition may be deemed a withdrawal from arbitration.

[6] Petitioners contend that the County never showed that the overpayment amounts were accurate because the spreadsheets do not show any calculations or even what the cap was in any given period. Pet. Op. Br. at 19. The County presented evidence that all affected deputies were free to question the numbers or to seek additional information. Banuelos Decl. ¶12. Petitioners never inquired regarding any issue relating to the repayment. Banuelos Decl. ¶12. The County had no ministerial duty to do more.

[7] All further statutory citations are to the Labor Code unless otherwise stated.

[8] Huinmin Song is an unpublished federal case not binding on the court. As Petitioners argue, its one-sentence reference to section 224 is devoid of analysis and of little persuasive value. Reply at 12.

[9] Respondents argue that Petitioners are guilty of unclean hands because they cannot pick and choose what provisions of the MOU to enforce by filing grievances, participating in an arbitration process, but rejecting Article 18(B). Opp. at 12-13, 16. There is nothing wrong with performing a contract, while contending that one provision is unlawful and unenforceable. This is not unclean hands.

[10] The court need not address Respondents’ arguments that declaratory relief is unavailable. Opp. at 15-16.

Case Number: BC707011 Hearing Date: January 21, 2020 Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ROCHEL DISI,

Plaintiff,

Case No.:

BC707011

vs.

[Tentative] RULING

TAD TANOURA, M.D., et al.,

Defendants.

Hearing Date: January 21, 2020

Moving Parties: Defendants Biosphere Medical, Inc. and Merit Medical Systems, Inc.

Responding Party: Plaintiff Rochel Disi

Motion to File Records Under Seal

The court considered the moving, opposition, and reply papers.

RULING

The motion is DENIED WITHOUT PREJUDICE.

BACKGROUND

On May 21, 2018, plaintiff Rochel Disi filed a complaint against defendants Tad Tanoura, M.D., The Regents of the University of California, The University of California at Los Angeles, Biosphere Medical, Inc., Merit Medical Systems, Inc., and Merit Bioacquisition Co. for medical malpractice, medical battery, medical malpractice – lack of informed consent, strict products liability – design and/or manufacturing defect, negligent products liability – failure to warn, negligence per se, breach of express warranty, breach of implied warranty, and misrepresentation.

On September 20, 2018, plaintiff filed a FAC for (1) medical malpractice, (2) medical battery, (3) medical malpractice – lack of informed consent, (4) strict products liability – manufacturing defect, (5) negligent design, (6) negligence, (7) strict products liability – failure to warn, (8) negligent products liability – failure to warn, and (9) misrepresentation.

On March 8, 2019, the court overruled the demurrer to the 6th cause of action and sustained with leave to amend the demurrer to the 7th through 9th causes of action.

On March 28, 2019, plaintiff filed a Second Amended Complaint.

On September 18, 2020, plaintiff filed a Third Amended Complaint.

LEGAL AUTHORITY

California Rules of Court (“CRC”), Rule 2.550(c) states: “Unless confidentiality is required by law, court records are presumed to be open.” But a party may move to seal records pursuant to Rules 2.550-2.551. CRC Rule 2.551(b)(1) states: “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” CRC Rule 2.550(d) states: “The court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.”

DISCUSSION

Defendants Biosphere Medical, Inc. and Merit Medical Systems, Inc. request that the court seal specified exhibits to defendants’ motion for summary judgment or, in the alternative, motion for summary adjudication:

1. Specifications for the mother solution from which the Subject Batch of Embosphere Microspheres was created [Tiffany Hunter decl., Exh. 1];

2. Specification for the Subject Batch [Hunter decl., Exh. 2];

3. Quality testing records for the mother solution from which the Subject Batch was created [Hunter decl., Exh. 3];

4. Quality testing records for the Subject Batch [Hunter decl., Exh. 4];

5. Reanalysis quality testing records for the sample of the Sample Batch retained by defendants in order to perform reanalysis testing to assess conformity with design specifications in the event an issue arises with a batch [Hunter decl., Exh. 5];

6. Sales invoice containing proprietary pricing information for the Subject Batch [Hunter decl., Exh. 6].

The court finds that defendants have not met their burden. Defendants’ present the declaration of attorney Tiffany Hunter in support of their motion, which is not competent evidence to support the court making the findings of facts that establish the requirements set forth in CRC Rule 2.550(d). Thus, defendants have not met their burden of showing that there exists an overriding interest in protecting disclosure of the documents requested, that a substantial probability exists that an overriding interest will be prejudiced if the records are not sealed, that the proposed sealing is narrowly tailored, and that less restrictive means do not exist.

The motion is therefore DENIED WITHOUT PREJUDICE.

The parties are ordered to meet and confer as to whether defendants can further narrow their request, as argued by plaintiff, with respect to documents identified as DEF000044-46.

Moving defendants are ordered to give notice.

Filed 1/21/20 P. v. Paet CA6

Opinion following transfer from Supreme Court.

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.

COURTNEY CHRISTINE PAET,

Defendant and Appellant.

H043983

(Santa Clara County

Super. Ct. No. C1515557)

Defendant Courtney Christine Paet pleaded no contest pursuant to a plea agreement to felony possession of heroin for sale (Health & Saf. Code, § 11351), misdemeanor possession of clonazepam for sale (§ 11375, subd. (b)(1)), and misdemeanor possession of alprazolam without a prescription (§ 11375, subd. (b)(2)). In September 2016, the court suspended imposition of sentence and placed her on probation for three years with numerous conditions.

On appeal, she challenged the court’s imposition of a search condition requiring her to submit to a warrantless search of “all cellular telephones in your possession or under your control, . . . any text messages, voice messages, call logs or [associated] photographs . . . .” Defendant contended that this condition was unconstitutionally overbroad because it impinged on her privacy.

In 2018, we issued our opinion, which concluded that the narrowly tailored cell phone search condition imposed by the trial court was not unconstitutionally overbroad and affirmed the trial court’s probation order. The California Supreme Court then granted review and held this case pending its decision in In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), which the California Supreme Court decided in August 2019. In October 2019, the California Supreme Court transferred this case back to this court with directions to vacate our decision and reconsider the case in light of Ricardo P. We vacated our decision and now reconsider defendant’s contention in light of Ricardo P. We reach the same conclusion and again affirm the trial court’s order.

I. Background

In June 2015, defendant was seen exiting a residence, talking and texting on her cell phone, and then engaging in a hand-to-hand drug transaction. Less than an hour later, she was again seen leaving the residence and engaging in a hand-to-hand drug transaction. She was detained and found in possession of heroin packaged for sale, a digital scale, illegal prescription pills, and drug paraphernalia. Defendant agreed to let law enforcement look at her cell phone. It was unlocked, and there were multiple “open text messages” on her cell phone indicating that defendant was selling narcotics.

In July 2015, defendant was charged by felony complaint with possession of heroin for sale, possession of clonazepam for sale, possession of methadone (§ 11350, subd. (a)), possession of hydrocodone (§ 11350, subd. (a)), and possession of alprazolam without a prescription.

While these charges were pending, defendant was separately charged with being under the influence of a controlled substance and three counts of aggravated trespass arising out of defendant’s August 2015 entries into multiple homes. After the August 2015 charges were brought, defendant was charged in a third case with possession of stolen property, possession of a controlled substance without a prescription, and possession of controlled substance paraphernalia.

In February 2016, defendant entered into a plea agreement to resolve the June and August 2015 cases. She pleaded no contest to the heroin, clonazepam, and alprazolam counts in exchange for dismissal of the other June 2015 counts and a grant of probation conditioned on a county jail term of six to eight months. She also pleaded no contest to the August 2015 charges.

The probation department recommended an electronics search probation condition because defendant had been using her cell phone to sell narcotics. The proposed condition would have applied to “all electronic devices (including but not limited to cellular telephones, computers or notepads) in his/her possession or under his/her control to a search of any text messages, voicemail messages, call logs, photographs, e-mail accounts, social media accounts (including but not limited to Facebook, Instagram, Twitter, Snapchat or any other site which the Probation Officer informs him/her of), and/or applications (‘apps’) pertaining to said accounts at any time with or without a warrant.” The probation department also recommended a probation condition requiring defendant to provide passwords for her electronic devices and accounts.

At the September 2016 sentencing hearing, the trial court suspended imposition of sentence and placed defendant on probation for three years conditioned on a six-month jail term, which was deemed served. Defendant objected to the proposed electronics search condition on the grounds that it was “overbroad” and “overinclusive.” Her trial counsel argued: “The cellphone, I do understand there may be a nexus. There is no nexus to anything other, including any social media accounts or any other applications.” The prosecutor argued that the proposed condition was justified because “defendant was in possession of a cellphone with text messages indicating she was involved in transportation, sales of narcotics.” He also argued that “it’s well-known that Facebook and other methods of social media are often used for drug transactions.”

The trial court responded by modifying the proposed electronics search condition and eliminating the passwords condition. It limited the electronics search condition to “all cellular telephones in your possession or under your control, . . . any text messages, voice messages, call logs or [associated] photographs . . . .” Defendant timely filed a notice of appeal.

II. Analysis

Defendant’s sole contention on appeal is that the cell phone search condition imposed by the trial court is unconstitutionally overbroad because it impinges on her right to privacy. She insists that it is not possible to narrowly tailor a cell phone search condition so as to render the condition constitutional.

“[A]dult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights . . . .” (People v. Olguin (2008) 45 Cal.4th 375, 384.) “A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890.) “The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) “[T]he right to privacy is not absolute, but may yield in the furtherance of compelling state interests.” (People v. Stritzinger (1983) 34 Cal.3d 505, 511.)

The question before us is whether the narrow cell phone search condition crafted by the trial court was sufficiently closely tailored to its purpose to justify the limited invasion of defendant’s right to privacy that it authorized. In this case, the state had a compelling interest in ensuring that defendant did not revert to criminality during her probation. The narrowly tailored cell phone search condition imposed by the trial court was carefully designed to enable the probation department to monitor whether defendant is complying with the conditions of her probation by avoiding narcotics. The compelling need for such a probation condition was amply demonstrated by the fact that defendant used her cell phone to commit the crimes for which she was being granted probation. The trial court’s restriction of the devices to which the condition would apply to only cell phones and further narrowing of the condition to only the types of information most closely associated with narcotics sales greatly limited the condition’s infringement upon defendant’s privacy interests.

This court has upheld electronics search conditions against constitutional overbreadth challenges where those conditions were justified by the circumstances of the case. In People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski), this court upheld much broader electronics conditions against an overbreadth challenge because the conditions were justified by the need to minimize the risk that the defendant posed to the community. “Access to all of defendant’s devices and social media accounts is the only way to see if defendant is ridding himself of his gang associations and activities, as required by the terms of his probation, or is continuing those associations and activities, in violation of his probation.” (Ebertowski, at p. 1175.) “The minimal invasion of his privacy that is involved in the probation officer monitoring defendant’s use of his devices and his social media accounts while defendant is on probation is outweighed by the state’s interest in protecting the public from a dangerous criminal who has been granted the privilege of probation.” (Ebertowski, at p. 1176.)

Unlike Ebertowski, this case does not involve a “dangerous criminal,” but it does involve a defendant who used her cell phone to commit the crimes for which she is being placed on probation. When a cell phone has been used as an instrumentality of the crime, the need for cell phone monitoring by the probation officer is acute. The limited abridgement of defendant’s privacy interests resulting from this condition is fully justified by this need.

Defendant’s reliance on Riley v. California (2014) 134 S.Ct. 2473 (Riley) is misplaced. Riley concerned the validity of a warrantless search of the contents of a cell phone under the exception to the warrant requirement for a search incident to an arrest. (Riley, at pp. 2493-2495.) The court held that a warrant was required because searches of cell phones “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” (Riley, at pp. 2488-2489.) Probation conditions do not implicate the warrant requirement because a probationer consents to a warrantless search.

Defendant also relies on this court’s decision in People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton). In Appleton, a different panel of this court distinguished Ebertowski and found unconstitutionally overbroad a probation condition requiring the defendant’s devices to be “ ‘subject to forensic analysis search.’ ” (Appleton, at p. 721.) That panel held that “the state’s interest here . . . could be served through narrower means. For example, the trial court could impose the narrower condition approved in Ebertowski, whereby defendant must provide his social media accounts and passwords to his probation officer for monitoring.” (Appleton, at p. 727.)

Appleton is readily distinguishable. Unlike the broad condition in Appleton, the probation condition imposed by the trial court in this case was limited to defendant’s cell phone, further limited to “text messages, voice messages, call logs or [associated] photographs,” and did not require defendant to submit her cell phone to “ ‘forensic analysis search.’ ” Thus, the probation condition here was narrowly drawn to permit the probation officer access to only a very limited portion of the information on defendant’s cell phone that was most likely to reflect her resumption of narcotics activity. Furthermore, the decision in Appleton plainly did not find all electronics search conditions to be unconstitutionally overbroad because it suggested that it would be appropriate for the trial court to impose the “narrower condition approved in Ebertowski,” which was considerably broader than the one imposed here.

Nothing in the California Supreme Court’s decision in Ricardo P. is to the contrary. The sole issue before the California Supreme Court in Ricardo P. was the reasonableness of a broad electronics search condition that had been imposed after a minor admitted two counts of burglary. The burglaries did not involve the use of any electronic devices. (Ricardo P., supra, 7 Cal.5th at pp. 1115-1116.) The court limited its analysis to cases in which the condition had no relationship to the criminal offenses for which probation was being granted. (Id. at p. 1119.) Since there was “no indication that Ricardo had used or will use electronic devices in connection with drugs or any illegal activity,” the California Supreme Court found that the condition was “not reasonably related to future criminality and is therefore invalid . . . .” (Id. at p. 1116.) The court noted, with express reference to our decision in Ebertowski, that “the probationer’s offense or personal history may provide the juvenile court with a sufficient factual basis” for imposition of an electronics search condition. (Ricardo P., at pp. 1128-1129.)

Here, unlike in Ricardo P., the narrow cell phone search condition was not unconstitutionally overbroad because it was based on the fact that defendant had used her cell phone in the commission of her crimes. The trial court did not err in imposing the challenged cell phone search condition.

III. Disposition

The order is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Bamattre-Manoukian, J.

People v. Paet

H043983

Filed 1/21/20 P. v. Aguilar-Mozo 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.

FILADELFO FELIPE AGUILAR-MOZO,

Defendant and Appellant.

H044591

(Santa Clara County

Super. Ct. No. C1631115)

I. INTRODUCTION

Defendant Filadelfo Felipe Aguilar-Mozo appeals after a jury found him guilty of two counts of forcible rape of a minor age 14 or older (Pen. Code, § 261, subd. (a)(2)), two counts of forcible sexual penetration of a minor age 14 or older (§ 289, subd. (a)(1)(C)), eight counts of committing a lewd or lascivious act on a minor under age 14 (§ 288, subd. (a)), misdemeanor battery (§ 242), assault with intent to commit forcible oral copulation (§ 220), misdemeanor assault (§ 240), and misdemeanor contempt of court (§ 166, subd. (a)(4)). The jury also found true the allegation that defendant inflicted great bodily injury in the commission of one of the rapes (§ 667.61, subds. (a), (d), (l)). The trial court sentenced defendant to an aggregate term of 41 years plus life without the possibility of parole.

Defendant requests this court to independently review the sealed education and medical records he subpoenaed that were withheld from disclosure by the trial court. In addition, defendant contends that the trial court abused its discretion and violated his right to due process when it admitted evidence of child sexual abuse accommodation syndrome (CSAAS), it erroneously instructed the jury on the CSAAS evidence with CALCRIM No. 1193, and it erroneously instructed the jury on consciousness of guilt with CALCRIM No. 371. In the alternative, defendant contends that his counsel provided ineffective assistance when she failed to object to the instructions on CSAAS evidence and consciousness of guilt. Finally, defendant contends that the cumulative effect of the errors requires reversal.

For reasons that we will explain, we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with 26 counts pertaining to the alleged sexual and physical abuse of his longtime girlfriend, K.D., and her daughters, S.D. and C.D. S.D. was born in September 2001. C.D. was born in July 2003.

A. Prosecution Evidence
B.
K.D. met defendant in 2009 or 2010 when she was working at a Carl’s Jr. and he was a frequent customer there. They started dating and eventually defendant moved in with K.D. and her daughters into K.D.’s one-room apartment in San Jose. In June 2015, they moved into a one bedroom apartment where K.D. and defendant shared the bedroom, and S.D. and C.D. slept on two couches in the living room.

In 2014, K.D. worked from 5:00 a.m. until 2:00 p.m. and from 5:00 p.m. until 1:00 a.m. Defendant worked from 9:00 a.m. until 3:00 p.m. Defendant took the girls to school and picked them up on the days K.D. was unable to. He also cared for them in the evenings while K.D. was at work. When defendant’s schedule changed in 2015, requiring him to work from 5:00 p.m. until 9:00 p.m., K.D. took her daughters with her to work. Defendant picked them up when he got off of work and cared for them until K.D. got home.

1. Abuse of K.D. (Counts 20-26)

In 2012, defendant went to Mexico and saw his sons, who were almost the same age as S.D. and C.D. When he returned, he “acted very violent.” Defendant shouted at K.D., insulted her, and slapped her face “all the time.” Defendant was obsessed with having a son because did not like daughters. K.D. was unable to have more children.

In 2014, defendant slapped K.D. on the face once or twice a week. In 2015, he became more violent and sexually abused her approximately twice a week. In June 2015, defendant told K.D. that everything would be different if she could give him a son. Defendant slapped K.D. and choked her. K.D. could not breathe and urinated on herself.

On another date in 2015, defendant called K.D. a prostitute and a bitch and told her he wanted to have sex with her. K.D. refused. Defendant slapped K.D. twice, so hard that she fell to the ground. Defendant grabbed K.D.’s arms hard and “did what he wanted.” Defendant got on top of K.D. and put his penis in her vagina. Then he pulled K.D.’s hair and told her he wanted her to “do it with [her] mouth.” K.D. told defendant “no” and tried to push him off of her, but she was unsuccessful. K.D. orally copulated him.

Another time in mid-2015, defendant slapped K.D. on her face and pushed her, causing her to fall. When she was on the ground, defendant kicked K.D. in the stomach.

On Thanksgiving Day 2015, K.D. took the car keys away from defendant because he was too drunk to drive. Defendant got very angry and bit K.D.’s right wrist in front of S.D. and C.D., leaving teeth marks and a purple bruise.

In late 2015, during an argument, defendant hit K.D. on the back with a knife. It did not leave a mark. Defendant told K.D. that everything would be different if she could give him a son and left.

K.D. did not report any of the abuse because defendant supported her by taking care of her daughters. She considered him to be a father to her girls and thought her daughters were happy. She never saw defendant hit the girls or touch them sexually.

2. Abuse of S.D. (Counts 1-15)

S.D. was seven years old when she met defendant. Defendant and her mother, K.D., started living together when S.D. was eight.

In 2014, defendant came up behind her and put his hand inside her shirt, under her bra. Defendant squeezed S.D.’s breast, which made her feel uncomfortable. S.D. tried to take defendant’s hand away, and he took his hand out from under her shirt. S.D. did not tell anyone about what happened. S.D. did not tell her mother because defendant said she would not believe her. “[T]he whole month of January,” defendant touched S.D. “over and under [her] clothes.”

Defendant touched S.D. in a way that made her feel uncomfortable eight times. Once, after winter break, defendant hugged S.D. from behind by her waist. Then he put his hand inside her jeans and underwear and started to touch her. Defendant stopped when S.D. pushed him away and told him to stop.

Another time when defendant was cooking, S.D. went to the sink to wash some dishes and defendant came up behind her, put his hands around her waist, and put one hand inside of her pants over her underwear and started to touch her.

Another time in the afternoon after school, defendant walked into the kitchen as S.D. was getting some fruit out of the refrigerator. Defendant asked if he could have some fruit and S.D. refused. Defendant went into the living room, but then came back into the kitchen and hugged S.D., putting his hand inside her jeans and touching her.

Once, on a Saturday or Sunday, S.D. was lying down in the bedroom watching television. S.D. got up when she saw defendant coming into the room. She was going to go into the living room, but defendant blocked the doorway. S.D. walked over to the window and began to communicate with one of her friends outside. S.D. went over to the television, and defendant came up behind her and put one hand in S.D.’s jeans, touching her vagina, and the other hand on her breast. S.D. was able to get defendant off of her and went into the living room to wait for her sister to come home.

In January 2015, defendant touched S.D.’s vagina. S.D. was in the kitchen after school getting herself some food and defendant came up behind her and put his hand inside her pants. Defendant touched S.D.’s vagina for about two minutes while S.D. tried to move away and pull defendant’s hand out of her pants.

Another time in 2015, S.D., C.D., and defendant were in the bedroom talking. They decided to go to a store downtown. C.D. left to go to the bathroom, and S.D. went to get a jacket from the closet. Defendant walked up to S.D., hugged her, and put one hand inside her pants and the other on one of her breasts. C.D. walked in and stared at them. Defendant removed his hands.

On another date, S.D. and C.D. were in the living room watching television. S.D. went to the bathroom, and when she was washing her hands, defendant stood behind her and looked at her in the mirror. Defendant put one hand on S.D.’s shoulder and his other hand inside her jeans. C.D. came into the room and said she needed to use the bathroom. Defendant let go of S.D.

One night in November 2015, around 11:00 o’clock, S.D. was at home with C.D. and defendant. Defendant was in boxer shorts and a tank top. C.D. was asleep on one couch and S.D. was lying on the other couch watching the news. Defendant walked over to S.D. S.D. began to shake because she felt like defendant was going to do something. Defendant got on top of S.D., keeping one leg on the ground, and looked to see if she was asleep. Defendant got up, pulled down his boxer shorts, and got back on top of S.D., pulling off her jeans and underwear. Defendant kept staring at her. He put one of his hands on the side of S.D.’s head and touched her vagina with his other hand. Defendant digitally penetrated her. S.D. started silently crying. She was too scared to tell him to stop. S.D. tried to push defendant off of her, but defendant slammed himself back down, knocking the air out of her.

Defendant put his penis inside S.D.’s vagina for about 10 minutes. S.D. was crying and trying to push defendant off of her while defendant moved up and down. At some point defendant got off of her and cleaned himself with toilet paper. S.D. did not tell her mother because defendant said that she would never believe her.

On another date in November 2015, sometime after Thanksgiving, S.D. and defendant were watching the news while C.D. was asleep. S.D. either fell asleep or pretended to, and awoke to defendant “just standing there.” Defendant sat down by S.D.’s feet and asked her if she did drugs, if she was offered drugs at school, and whether she would try drugs. As the discussion ensued, defendant scooted himself up and pulled S.D.’s leggings and underwear down. Defendant pulled his boxer shorts down and touched S.D.’s vagina, inside the vaginal lips. S.D. told him to “ ‘[g]et off.’ ” Defendant got on top of S.D. and put his penis inside her vagina. S.D. started crying and yelled at defendant to get off of her. S.D. tried to push defendant up with her hands, but defendant slapped her and continued. After 10 minutes, defendant got up and went into the bathroom.

S.D. did not tell her mother what happened because when defendant took her and C.D. to school the next day, he told them that they should not trust their mother, their mother had no time for them and did not pay attention to them, and they should tell him everything. Defendant also threatened to have his friends “do something” to S.D. and C.D. Although S.D. did not tell her mother, at some point she told defendant “not to do that to [her] because he was [her] mom’s boyfriend and he should respect [her] mom.”

In addition to the sexual abuse, from 2014 through 2016, defendant often hit S.D. on the legs with the cord of a phone charger. Defendant would hit S.D. so hard she would cry. If defendant could not find the phone charger, he would use a hangar and would hit S.D. on her arms, leaving a mark.

Once, when S.D. was in eighth grade, she did not change for gym class because she had a mark on her thighs from defendant hitting her with the phone cord. Another time, defendant got mad at S.D. because she had a boyfriend. He called her a “hoe” and took her phone away. Defendant slapped S.D. on the back with the flat side of a 9- to 10-inch butcher knife.

S.D. met with her school psychologist in August 2015. S.D. was cutting herself. An individualized education plan was developed to help S.D. stop harming herself. At the end of 2015, S.D. experienced flashbacks that interfered with her concentration. She worked with the psychologist to develop coping mechanisms.

3. Abuse of C.D. (Counts 16-19)

At some point when C.D. was in middle school, she went into the kitchen after school and defendant came up and hugged her. He grabbed her chest over her clothes and squeezed for five seconds. C.D. told him to stop. Defendant touched C.D’s chest another time, but she did not remember the details. Defendant also grabbed C.D.’s butt once when she was in the kitchen getting food. “[H]e just c[ame] out of nowhere.”

On Halloween 2015, defendant touched C.D. on her butt for five seconds, which made her uncomfortable. C.D. told defendant not to do it again.

C.D. did not tell K.D. about the touching because she was scared it would aggravate her mother’s asthma.

When defendant got mad at C.D., he would hit her with a phone charger on her arm or back. He also struck C.D. with his hand when she tried to stop him from hitting K.D.

4. Subsequent Events

In January or February 2016, S.D. began having stomach pain and headaches. The stomach pain worsened daily. On February 15, K.D. took S.D. to the hospital for tests and they learned that she was pregnant. When K.D. asked if defendant was the father, S.D. told her that he was.

S.D. and K.D. returned home from the hospital. S.D.’s aunt and uncle were with them. K.D. confronted defendant about S.D.’s pregnancy, and defendant denied the child was his. C.D. called the police. Defendant went into the bathroom and pushed the window screen out. S.D.’s uncle grabbed defendant. They went into the living room and defendant got on top of a couch and tried to climb out the window. S.D.’s uncle grabbed him again, and the police arrived.

S.D. gave birth to a girl in August 2016, after two days of labor. The delivery was hard and painful.

On May 5, 2016, defendant was ordered not to have any contact with K.D. Between June 25, 2016 and July 30, 2016, K.D. received 41 calls from the Elmwood Correctional Facility. On some of the voicemail messages from those calls, the caller identified himself as “Felipe.”

5. Expert Testimony

a. Dr. Anthony Urquiza

Dr. Anthony Urquiza testified as an expert in victims of child abuse and the dynamics of disclosure. He did not know the facts of the case and had not met the victims or made a diagnosis.

Dr. Urquiza testified regarding child sexual abuse accommodation syndrome, which was developed as a tool to dispel common misperceptions about victims of child sexual abuse. Dr. Urquiza stated that children are usually sexually abused by someone with whom they have an ongoing relationship, rather than a stranger. The abuser is usually older, stronger, bigger, and/or in a position of authority over the child. In Dr. Urquiza’s experience, many children genuinely care about and love their abuser because the abuser is also their caretaker and emotional support.

Dr. Urquiza testified that one of the factors of CSAAS is helplessness. It is unreasonable to expect sexually abused children to fight off the perpetrator or scream. That usually does not happen. Anything that marginalizes the victim or gives more power to the perpetrator makes the victim more helpless, including telling the victim that no one would believe him or her.

Another factor of CSAAS is secrecy. Dr. Urquiza testified that most victims do not immediately disclose the abuse. He also stated that perpetrators do things to ensure nondisclosure, such as threatening the victim with harm if he or she tells anyone, intimidating the victim through violence with other household members, or giving the victim a lot of praise and affection.

Entrapment and accommodation pertain to a situation where the victim is trapped and the coping mechanisms he or she develops in response. The most common coping mechanism is disassociation, where a victim suppresses feelings of shame, embarrassment, and humiliation by disengaging part of his or her awareness. “[W]hat that looks like is kids talking about being sexually abused without any emotional connection.”

Dr. Urquiza testified that delayed disclosure is more common than immediate disclosure. Three-quarters of sexually abused children do not disclose the abuse within the first year, even if the child has a close friend or family member he or she can confide in. The closer the relationship between the perpetrator and the victim, the longer it takes the victim to disclose. Dr. Urquiza also stated that children will disclose some information about the abuse, and if the disclosure is responded to supportively, they will disclose additional information. This dynamic has been termed “unconvincing disclosure” because victims’ versions of abuse change. In a minority of cases, usually when the disclosure has not been delayed, victims disclose everything that happened to them at once.

Dr. Urquiza testified that it is difficult for victims to describe different instances of abuse if they have been sexually abused several times and the abuse is similar. Details of the circumstances of the abuse, such of the color of the perpetrator’s shoes, are also difficult for children to describe.

b. Criminalist Michelle Bell

Criminalist Michelle Bell testified as an expert in forensic science and DNA analysis. Bell developed DNA profiles for S.D., “Baby Girl” L.D., and defendant. Bell testified that “[a]ssuming that [S.D.] is the mother of [L.D.], the likelihood of this combination of DNA profiles is at least 666,500 times greater if there is a biological parent/child relationship between [defendant] and [L.D.] than if there’s no biological relationship.” Bell stated this was “very strong support for the hypothesis that [S.D.] and [defendant] are the biological parents of [L.D.].”

C. Defense Evidence
D.
Santa Clara County social worker Enrique Ramirez testified that he spoke with S.D. on February 15, 2016, after the police responded to K.D.’s apartment. S.D. was distraught and crying but she “seemed open” and answered his questions about what happened to her.

Ramirez also spoke with C.D. and K.D. C.D. did not give any indication that she had been physically or sexually abused by defendant. K.D. stated that she had been verbally abused by defendant and physically abused by him on at least one occasion when he hit her arm, causing a bruise. She did not describe any sexual abuse. K.D. told Ramirez that she had been planning to have defendant move out of the house because of the violence. K.D. asked Ramirez about a “U visa,” which is a visa provided to victims of violent crime. K.D. also indicated that she wanted to move to Atlanta.

Ramirez spoke to K.D. again the next day. K.D. told him that S.D. said defendant molested her twice. K.D. stated that she wanted to move to Atlanta because it was painful for her and the girls to stay in the apartment, but she wanted to remain in California until defendant was sentenced like he deserved. K.D. applied for relocation funds.

San Jose Police Officer Patrick Baldassari testified that on February 15, 2016, he responded to a call regarding a family disturbance. Officer Baldassari heard a loud argument as he approached the caller’s apartment.

Officer Baldassari met the reporting party, C.D., who waved him inside. The living room of the apartment had two couches, each along a separate wall. The couches were approximately 10 feet apart. The kitchen could be seen from the living room, and there was a bathroom off to the side and a door to the bedroom.

Officer Baldassari interviewed S.D. in English. She was able to explain herself to the officer. S.D cried during the interview. S.D. stated that she did not have a cell phone. S.D. provided her mother’s phone number to the officer as a contact number.

Officer Baldassari also interviewed C.D. in English. She answered his questions. She had a serious, matter-of-fact demeanor. She did not ask to be interviewed in Spanish.

Emergency room physician Greg Groetsema testified that on July 24, 2013, he treated K.D. for an injury from a car accident. He saw no indication that K.D. was a victim of domestic violence or that she suffered from asthma.

Emergency room physician Meenesh Bhimani testified that on March 13, 2015, he treated K.D. for a headache. He did not see any injuries consistent with domestic violence. He did not note any history of asthma.

Rita Mamarian testified that she was a clinician at Uplift Family Services on the Community Services Program. She met with K.D. and S.D. on May 4 and on another date.

M.L. testified that she had been friends with S.D. since around sixth grade. They became closer in high school, but they were no longer friends at the time of trial. M.L. would not characterize S.D. as an honest person.

M.L. stated that she would describe S.D.’s relationship with defendant as boyfriend-girlfriend, rather than father-daughter, based on the way that defendant looked at her and the way she talked to him and “played around with him.” In text messages, S.D. and defendant called each other “Babe.” M.L. did not see any signs that S.D. was being physically abused and S.D. never told her that she was being physically abused. M.L. believed S.D. “went along with the sexual relationship.”

M.L. stated that she found out S.D. was pregnant in February 2016 when she, her mother, and another friend were at S.D.’s house. K.D. forced S.D. to tell them she was pregnant, saying, “ ‘Go. Tell them what happened.’ ” K.D. was very mad and very upset. S.D. was crying.

On cross-examination, M.L. testified that defendant was over-protective of S.D. and that he got jealous when she talked about boys. When defendant looked at S.D., he would eye her up and down in a “perverted” way. S.D. once told M.L. that she was afraid of defendant.

E.G. testified that she was M.L.’s mother and knew S.D. E.G. took M.L. to visit S.D. at S.D.’s apartment because S.D. had not been to school for a week or so and M.L. was worried. When they arrived, K.D. said, “ ‘Tell your friends what you did.’ ”

Majaleth Torres testified that she managed the apartment complex where K.D., S.D., and C.D. lived. Torres thought S.D. was a “liar.” Torres never suspected that K.D. was being physically abused. Torres did not think K.D. had a good relationship with her daughters. K.D told Torres that S.D. was “always lying to her” and that C.D. covered for S.D.

Torres stated that she sometimes saw S.D. and defendant together. After November 2015, Torres noticed a change in S.D.’s relationship with defendant. Torres saw S.D. pull defendant close to her or hug him when they were walking to the parking lot. S.D. put her arms around defendant’s neck and pulled him toward her chest. S.D. and defendant did not appear to have a father-daughter relationship.

Torres testified that defendant never gave her a reason to believe he was violent and he never hung around the apartment complex with violent people. On the date of defendant’s arrest, K.D. told Torres that she had been verbally abused. K.D. also told Torres that S.D. said she was never really abused.

C. Defendant’s Testimony

Defendant testified that he met K.D. in 2009, right after he moved to the United States. He moved in with K.D. in November 2010. His relationship with K.D. began to change in January 2016. There was no longer any trust and they were fighting more. The fights were verbal. He talked with K.D., S.D., and C.D. about his plans to move out at the end of the lease in February.

Defendant testified that he told K.D. he wanted to have a son with her and they argued about his desire to have more children because she did not initially tell him that she could not have any more children. They discussed adoption. Defendant never told K.D. that he did not want to have daughters. K.D. wanted a boy. He did not consider himself to be a father figure to S.D. and C.D. because they never called him “Dad” and he never played that role. K.D. set the rules for the girls and she made it clear it was her responsibility to raise them.

Defendant stated that he never forced K.D. to have sex with him or orally copulate him. Defendant was never physically abusive toward K.D. and never hit her with a knife.

Defendant testified that K.D. told him he would regret it if he ever did anything to S.D. K.D. made up her testimony because she was upset about his relationship with S.D.

Defendant stated that he never touched C.D. inappropriately. He was working on Halloween 2015 and did not take the girls anywhere. Defendant was unaware that C.D. had any issues with their relationship.

Defendant testified that in October 2015, his relationship with S.D. “became more intimate” and was more like boyfriend-girlfriend. They sent text messages to each other and began hugging and kissing each other. They had consensual sex for the first time in the beginning of November. They were in the living room on one couch while C.D. was on the other couch. They had consensual sex another time in November when defendant went into the bedroom and S.D. came over to him. They had consensual sex once more in December. During this time period, defendant continued to take S.D. to school and pick her up. He never forced S.D. to have sex with him.

Defendant testified that he learned S.D. was pregnant on February 15, 2016. When S.D. arrived home with K.D., C.D., and K.D.’s sister and brother-in-law, K.D. immediately started screaming at defendant and hitting him. He tried to leave the apartment. He was not trying to escape, but wanted to leave because it was too noisy and they were insulting him and beating him.

On cross-examination, defendant testified that he was 31 years old. S.D. turned 14 in September 2015. Defendant was entrusted to take S.D. and C.D. to and from school and to care for them while K.D. was at work. K.D. is angry that he had a relationship with S.D. C.D. is lying because she wants him to be punished for his relationship with S.D.

Defendant admitted that he was ordered not to have any contact with K.D., but he repeatedly called her from jail.

D. Rebuttal Evidence
E.
Deputy District Attorney Luis Ramos testified that he reviewed requests for U visas as part of his job duties. He was unaware of a request for a U visa in this case.

Victim Advocate Margarita Villa testified that she became K.D.’s advocate soon after the case was referred to the police. The topic of a U visa had never come up in her discussions with K.D.

F. Charges, Verdicts, and Sentence
G.
Defendant was charged with two counts of forcible rape of a minor age 14 or older and inflicting great bodily injury in the commission of the offenses (§§ 261, subd. (a)(2), 667.61, subds. (a), (d), (l); counts 1-2); two counts of forcible sexual penetration of a minor age 14 or older (§ 289, subd. (a)(1)(C); counts 3-4); 11 counts of committing a lewd or lascivious act on a minor under age 14 (§ 288, subd. (a); counts 5-12, 16-18); four counts of child endangerment involving unjustifiable pain and suffering (§ 273a, subd. (b); counts 13-15, 19); forcible rape (§ 261, subd. (a)(2); count 20); forcible oral copulation (§ 288a, subd. (c)(2); count 21); two counts of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a); counts 22-23); two counts of misdemeanor battery on a spouse or person in a dating relationship (§§ 242, 243, subd. (e); counts 24-25); and misdemeanor contempt of court (§ 166, subd. (a)(4); count 26). It was also alleged as to counts 1 through 12 and 16 through 18 that defendant committed the offense against more than one victim. (§ 667.61, subds. (b), (e)).

A jury found defendant guilty of counts 1 through 12 and 26 and found true the allegation that defendant inflicted great bodily injury in the commission of count 1. The jury acquitted defendant of counts 13 through 25, but convicted him of the lesser included offenses of battery (§ 242; lesser included offense of count 20), assault with intent to commit oral copulation by force (§ 220; lesser included offense of count 21), and assault (§ 240; lesser included offense of count 22).

The trial court sentenced defendant to an aggregate term of 41 years plus life without the possibility of parole.

III. DISCUSSION

A. Record Review
B.
Defendant requests this court to independently review S.D.’s sealed education and medical records to determine if the trial court properly withheld them from disclosure. The Attorney General does not oppose defendant’s request.

1. Background

Defendant filed three pretrial motions for the release of subpoenaed medical and education records pertaining to S.D. First, defendant sought the disclosure of hospital records regarding S.D.’s pregnancy and the disclosure of S.D.’s academic, disciplinary, and attendance records from two local high schools. The prosecution opposed the motion. The trial court found that defendant had failed to establish good cause for the release of S.D.’s school records “at this stage of the proceedings,” but tentatively ruled after its preliminary review of the medical records that it would “disclose everything that is relevant to [S.D.’s] credibility” after it performed a second in camera review. It is unclear from the record which documents were ultimately disclosed after the hearing.

Second, defendant sought the disclosure of additional medical records for S.D., S.D.’s mental health records from “EPS,” the Campbell Union High School District psychologist’s records for S.D., and S.D.’s education records. The prosecution did not oppose disclosure. The trial court noted that the medical records received by the court were privileged, but released the records subject to a protective order based on the lack of objection to their disclosure. The court indicated that it had not received anything in response to the subpoenas served on several medical facilities and schools, and continued the hearing on those records to a later date.

At the subsequent hearing, the trial court stated that it had received S.D.’s mental health records from Santa Clara Valley Medical Center and the Campbell Union High School District. The prosecution objected to release of the records, and the court deferred its review of the records to the trial judge.

Third, defendant moved for the disclosure of education and psychological records subpoenaed from the Campbell Union High School District and mental health records subpoenaed from “EPS.” The motion was heard by the trial judge. The trial court stated that after conducting an in camera review, “some records . . . appear to be relevant . . . [to] the credibility of one of the complaining witnesses. And as a result, [it would] release both sets of records to [defendant].”

2. Analysis

In People v. Hammon (1997) 15 Cal.4th 1117, 1128, the California Supreme Court declined to “extend the defendant’s Sixth Amendment rights of confrontation and cross-examination to authorize pretrial disclosure of privileged information.” However, the court also recognized that “[w]hen a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon . . . to balance the defendant’s need for cross-examination and the state policies the privilege is intended to serve. [Citation.]” (Id. at p. 1127.)

We have reviewed the subpoenaed records pertaining to S.D. Most of the records were disclosed to defendant, including medical records, mental health records, and education records, but the trial court did not disclose some of S.D.’s medical and education records. After reviewing the records that were not disclosed, we conclude that the trial court did not err in implicitly ruling that there was no information in the records that could have been used to impeach S.D. or to support the defense theory. The nondisclosed medical records contained S.D.’s statement that she had been raped by her mother’s boyfriend, which was consistent with S.D.’s trial testimony. The nondisclosed education records did not include any information relevant to the issues at trial.

C. CSAAS Evidence
D.
Defendant contends that the trial court abused its discretion when it admitted the CSAAS evidence. Defendant argues that the evidence was irrelevant because the record did not establish that jurors held misconceptions about children’s behavior after sexual abuse; the evidence improperly bolstered S.D.’s testimony; and the expert’s testimony improperly linked CSAAS to the facts of this case. Defendant also contends that the evidence’s admission violated his right to due process and a fair trial. The Attorney General counters that defendant has forfeited this claim because he failed to object to the evidence at trial and that in any event, the trial court did not abuse its discretion when it admitted the expert’s testimony.

1. Trial Court Proceedings
2.
The prosecution moved in limine to present CSAAS evidence. The prosecution asserted that CSAAS evidence is generally admissible “when the victim’s credibility is attacked by a defendant’s suggestion that the victim’s conduct after the incident is inconsistent with his or her testimony claiming the molestation.” The prosecution argued that the evidence was relevant here because the victims kept the abuse secret, their disclosure of the abuse was delayed, they experienced helplessness due to K.D.’s work schedule and reliance on defendant, and there was evidence of entrapment and accommodation.

In his motions in limine, defendant requested the trial court to hold a hearing to determine the admissibility of Dr. Urquiza’s testimony. Defendant argued that “the relevancy of the testimony is dependent upon the testimony of the complaining witness, whether or not the jury needs any clarification[,] or whether the defense is insinuating or attacking the [complaining witness’] credibility based on one of the subjects that [the prosecution] proposes the witness to testify to. [¶] So at this point, . . . [defendant] would suggest or request that we delay a finding on this until after the complaining witnesses testify.”

The trial court delayed its ruling on the admissibility of CSAAS evidence until after the complaining witnesses had testified.

The prosecution called Dr. Urquiza as a witness after K.D., S.D., C.D., and S.D.’s school psychologist testified. Defendant did not object and there was no explicit ruling by the trial court regarding the admissibility of CSAAS evidence preceding Dr. Urquiza’s testimony.

After Dr. Urquiza’s testimony concluded, the trial court noted that “there was some question, did the prosecution, perhaps, drill down and become too case-specific during the direct examination of the doctor.” The court determined that “the prosecution did not drill down too deep” and that “it seem[ed] to the Court, necessary to do that in order to establish the relevance of that evidence in the first place.” The court found that “the prosecution [was] restricted with respect to the presentation of such testimony to those portions of [CSAAS] that are actually applicable to this case,” which were “delayed reporting, secrecy, helplessness, and entrapment and accommodation.” The court observed that Dr. Urquiza testified at least twice that he did not know anything about the facts of the case, did not know the individuals involved, and was not there to suggest that a sexual offense had occurred. The court concluded that the testimony fell “within the boundaries of proper CSAAS testimony.” When the trial court asked the parties whether they wanted to add anything, both declined.

3. Forfeiture
4.
“ ‘A party desiring to preserve for appeal a challenge to the admission of evidence must comply with the provisions of Evidence Code section 353, which precludes reversal for erroneous admission of evidence unless: “There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated to make clear the specific ground of the objection or motion.” ’ [Citation.] A properly directed motion in limine may satisfy the requirements of Evidence Code section 353 and preserve objections for appeal. [Citation.] However, the proponent must secure an express ruling from the court.” (People v. Ramos (1997) 15 Cal.4th 1133, 1171 (Ramos).)

Here, defendant raises three challenges to the trial court’s admission of the CSAAS evidence, namely: (1) the record did not establish that jurors held misconceptions about children’s behavior after sexual abuse; (2) the evidence improperly bolstered S.D.’s testimony; and (3) the expert’s testimony improperly linked CSAAS to the facts of this case.

Arguably, defendant raised the first challenge during the trial court’s hearing on the motions in limine when he argued that the relevance of the evidence was dependent, in part, on “whether or not the jury need[ed] any clarification” of children’s post-molestation behavior. However, defendant requested that the trial court delay its ruling on the CSAAS evidence’s admission until after the victims had testified, and then failed to “preserve the issue for appeal” because he “did not[] renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself.” (People v. Holloway (2004) 33 Cal.4th 96, 133.) Thus, we determine that defendant’s claim that the trial court improperly admitted CSAAS evidence because the record did not establish that jurors’ held misconceptions of molested children’s behavior was forfeited.

We also conclude that defendant’s claim that the evidence improperly bolstered S.D.’s testimony was not preserved for appeal. Defendant did not raise this issue in his motion in limine pertaining to CSAAS evidence, nor did he argue it at the hearing on the in limine motions or object on that basis at trial. Thus, the claim has been forfeited. (See Ramos, supra, 15 Cal.4th at p. 1172 [Evidence Code section 353 “require[s] sufficient specificity of evidence and legal grounds for the opposing party to respond if necessary, for the trial court to determine the question intelligently, and for the appellate court to have a record adequate to review for error”].)

We will assume based on the trial court’s comments after Dr. Urquiza testified that defendant’s claim that the expert’s testimony improperly linked CSAAS to the facts of this case was raised below and preserved for appeal. The court noted that an issue had been raised about whether the prosecution’s questions were “too case-specific,” but determined that the evidence fell “within the boundaries of proper CSAAS testimony.” Thus, we will assume from the trial court’s statements that the court was responding to a motion to strike the testimony based on the case specificity of the expert’s testimony, preserving the issue on appeal. (See Ramos, supra, 15 Cal.4th at p. 1172 [“ ‘Evidence Code section 353 does not exalt form over substance’ ”].)

5. Legal Principles
6.
California courts have held that CSAAS evidence is admissible to disabuse jurors of commonly held misconceptions about child sexual abuse. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin); People v. Gonzales (2017) 16 Cal.App.5th 494, 503; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino); People v. Housley (1992) 6 Cal.App.4th 947, 955-956 (Housley); People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383-1384 (Gilbert), superseded on other grounds by CALJIC No. 10.41, as recognized in People v. Levesque (1995) 35 Cal.App.4th 530, 536-537; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450; People v. Stark (1989) 213 Cal.App.3d 107, 116-117; People v. Bowker (1988) 203 Cal.App.3d 385, 393-394 (Bowker).) CSAAS “evidence is admissible solely for the purpose of showing that the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested.” (Bowker, supra, at p. 394.) The need for CSAAS evidence arises when the defendant attacks the child’s credibility by suggesting that the child’s conduct after the incident, such as a delay in reporting, is inconsistent with the child’s testimony claiming molestation. (McAlpin, supra, at p. 1300.) Importantly, however, CSAAS evidence may not be offered to prove that a child’s molestation claim is true. (Ibid.)

“ ‘The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.’ [Citation.]” (People v. Brown (2014) 59 Cal.4th 86, 101.) “[W]e will not disturb the court’s exercise of that discretion unless it acted in an arbitrary, capricious or patently absurd manner [citation].” (People v. Jones (2013) 57 Cal.4th 899, 947.)

7. Analysis
8.
Defendant contends that the trial court abused its discretion in admitting the CSAAS evidence because the prosecution’s questions elicited testimony that “too closely tracked the facts of this case.” For example, Dr. Urquiza testified that most children do not immediately disclose molestation because they feel helpless and that children do not usually fight off the perpetrator or scream. Dr. Urquiza stated that perpetrators engage in behavior to promote nondisclosure, such as threatening the victim with harm to themselves or to other household members or telling the victim that no one will believe them. Dr. Urquiza also testified that the closer the victim is to the perpetrator, the longer it takes the victim to disclose, and that children disclose abuse in a piecemeal fashion rather than disclosing everything that happened at once.

Although some of the complained-of testimony corresponded to S.D.’s conduct and the facts of this case, we conclude that the jury would not have improperly implied from Dr. Urquiza’s testimony that he had diagnosed S.D’s abuse or that he believed S.D. had been abused. Dr. Urquiza’s testimony about CSAAS was directed to the behavior of children as a class and their common reactions to sexual abuse, rather than to the particular victims in this case. Dr. Urquiza testified that he did not know the facts of the case, had not spoken to the victims or defendant, and had not read the police reports. He also made clear that CSAAS was an educational, not diagnostic, tool. Thus, it was “unlikely the jury would interpret [the expert’s] statements as a testimonial to [the victims’] credibility.” (Housley, supra, 6 Cal.App.4th at pp. 955-956.)

Moreover, the trial court explicitly instructed the jury that “Dr. Urquiza’s testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not the conduct of [S.D.] and [C.D.] was not inconsistent with the conduct of someone who has been molested and [to] evaluate the believability of their testimony.” This admonishment removed the possibility that the jury might misunderstand Dr. Urquiza’s testimony or the proper use of CSAAS evidence.

For these reasons, we conclude that the trial court did not abuse its discretion when it admitted the CSAAS evidence.

9. Due Process
10.
Defendant contends that the admission of CSAAS evidence violated his federal constitutional right to due process.

However, “[t]he admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair. [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 913.) The CSAAS evidence admitted here was relevant to the issues presented in the case and, as it was properly limited, did not render defendant’s trial fundamentally unfair. (See Patino, supra, 26 Cal.App.4th at p. 1747 [the admission of CSAAS evidence at trial does not render the trial fundamentally unfair]; see also Estelle v. McGuire (1991) 502 U.S. 62, 69-70 [the admission of relevant evidence of battered child syndrome does not violate the due process clause of the Fourteenth Amendment].)

For all of these reasons, we conclude that the trial court properly admitted the CSAAS evidence.

E. Instruction on CSAAS Evidence
F.
Defendant contends that the trial court erred when it instructed the jury with CALCRIM No. 1193 because it “effectively instructs . . . that CSAAS evidence and the expert testimony may be used to determine whether the victim’s claims are true.” Defendant also contends that his trial counsel was constitutionally deficient when she failed to object to the instruction. The Attorney General counters that the instruction “actually told the jury it could not use that testimony as ‘evidence that the defendant committed any of the crimes charged against him’ ” and that the instruction correctly stated the law. The Attorney General does not argue that defendant’s claim has been forfeited.

The trial court instructed the jury pursuant to CALCRIM No. 1193 as follows: “You have heard testimony from Dr. Anthony Urquiza regarding [CSAAS]. Dr. Urquiza’s testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not the conduct of [S.D.] and [C.D.] was not inconsistent with the conduct of someone who has been molested and [to] evaluate the believability of their testimony.”

When we review a purportedly erroneous instruction, we consider “ ‘ “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” ’ ” (People v. Richardson (2008) 43 Cal.4th 959, 1028 (Richardson).) We consider the instructions as a whole and “ ‘assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]” (Ibid.)

We determine that it is not reasonably likely jurors understood CALCRIM No. 1193 as permitting the use of CSAAS evidence for the improper purpose of proving that S.D. and C.D. were abused by defendant. (See Richardson, supra, 43 Cal.4th at p. 1028.) As given by the trial court, CALCRIM No. 1193 was a cautionary instruction that specifically warned jurors that they must not consider CSAAS testimony as evidence that the defendant committed the offense. It then informed jurors that they may use CSAAS evidence to evaluate whether the alleged victims’ behavior that appeared to be inconsistent with molestation was actually not inconsistent. To the extent that CALCRIM No. 1193 allowed jurors to consider the CSAAS evidence in their evaluation of S.D.’s and C.D.’s credibility, the instruction was proper because the evidence was relevant and admissible as S.D.’s and C.D.’s credibility had been attacked. (See McAlpin, supra, 53 Cal.3d at pp. 1300-1301; Gilbert, supra, 5 Cal.App.4th at p. 1383.)

Thus, we conclude that defendant’s claim regarding CALCRIM No. 1193 is without merit.

G. Consciousness of Guilt Instruction Based on the Fabrication of Evidence or Trying to Obtain False Testimony
H.
Defendant contends that the trial court erred when it instructed the jury with CALCRIM No. 371, regarding consciousness of guilt based on the fabrication of evidence or trying to obtain false testimony, because the instruction was not supported by substantial evidence. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129 [“It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case”].) Defendant also contends that the instruction violated his due process rights because it contained “an irrational permissive inference” and it “improperly shifted the balance of instructions against the defense.” (Capitalization and bold omitted.) The Attorney General counters that the claim has been forfeited and that the evidence of defendant’s 41 jail calls to K.D. sufficiently supported the instruction.

The trial court instructed the jury with CALCRIM No. 371 as follows: “If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.”

Defendant asserts that he may challenge the instruction on appeal despite his failure to object to it below because the instruction affected his substantial rights. Alternatively, defendant contends his trial counsel was ineffective for failing to object to the instruction.

We may review a claim of instructional error that affects the defendant’s “substantial rights” with or without a trial objection. (§ 1259; see People v. Cage (2015) 62 Cal.4th 256, 285.) Whether we review defendant’s claim of instructional error under section 1259 or under the rubric of his ineffective assistance of counsel claim, we must determine whether any error was prejudicial. (See People v. Ramos (2008) 163 Cal.App.4th 1082, 1087; Strickland v. Washington (1984) 466 U.S. 668, 695, 697 (Strickland).) Thus, even if we assume the instruction was not supported by substantial evidence, we would need to determine whether there is a reasonable probability that the result of defendant’s trial would have been different had the trial court not given the instruction. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Mitchell (2008) 164 Cal.App.4th 442, 465 (Mitchell) [“ ‘Substantial rights’ are equated with errors resulting in a miscarriage of justice under . . . Watson”]; Strickland, supra, at p. 695.)

A number of factors show that defendant was not prejudiced by the trial court’s instruction on consciousness of guilt based on the fabrication of evidence. First, the challenged instruction was not mentioned during closing arguments, and the prosecutor did not argue that defendant fabricated evidence or that the jury should infer his guilt on that basis. Second, the challenged instruction made it clear that the jury was to determine “[i]f” defendant tried to fabricate evidence; the instruction did not suggest that there was evidence defendant tried to fabricate evidence. Third, the jury was instructed that “[s]ome of the[ ] instructions may not apply” and that jurors should not “assume” that by giving a particular instruction, the trial court was “suggesting anything about the facts.” Thus, if the evidence did not support the consciousness of guilt instruction, “we presume that the jury concluded that the instruction[] did not apply to [defendant] and it should not infer a consciousness of his guilt.” (People v. Nunez and Satele (2013) 57 Cal.4th 1, 49.) Fourth, the instruction pursuant to CALCRIM No. 371 could be viewed as benefitting defendant because it told the jury that any effort defendant may have taken to fabricate evidence was not, by itself, sufficient to establish his guilt. (See People v. Johnson (1992) 3 Cal.4th 1183, 1235 [addressing CALJIC No. 2.06, predecessor to CALCRIM No. 371].)

In sum, there is no reasonable probability that the result of defendant’s trial would have been different had the trial court not instructed the jury on consciousness of guilt. (See Watson, supra, 46 Cal.2d at p. 836.) Thus, defendant cannot establish that his substantial rights were affected by the instruction or that his counsel was constitutionally deficient for failing to object to it. (See Mitchell, supra, 164 Cal.App.4th at p. 465; Strickland, supra, 466 U.S. at p. 695.)

I. Cumulative Error
J.
Defendant contends that his convictions must be reversed due to cumulative prejudice. Because there are no errors to cumulate, defendant’s claim fails. (See In re Reno (2012) 55 Cal.4th 428, 483; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)

IV. DISPOSITION

The judgment is affirmed.

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

ELIA, ACTING P.J.

MIHARA, J.

People v. AguilarMozo

H044591

Filed 1/21/20 Shuk-Han Kwok v. Kwong CA1/4

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

FIRST APPELLATE DISTRICT

DIVISION FOUR

JENNIFER SHUK-HAN KWOK,

Plaintiff and Appellant,

v.

LAU KWONG et al.,

Defendants and Respondents.

A155893

(City & County of San Francisco

Super. Ct. No. CGC185649432)

Plaintiff Jennifer Shuk-Han Kwok (Jennifer) appeals a judgment of dismissal entered after the trial court sustained a demurrer to the complaint by which she sought to extend protracted litigation over the estate of her late husband Stanley Kwong (Stan), a successful real estate broker who died in 2009. Several years ago, in an unpublished opinion, this court decided Estate of Kwong (July 7, 2016, Nos. A140437, A141290) [nonpub. opn.] (Kwong I), resolving disputes between Jennifer and Stan’s mother Lau Kwong (Mother) and brother Larry Kwong (Brother). Stan, who had managed all of Mother’s finances for nearly 30 years before his untimely death, left his entire estate to Jennifer and nothing to Mother. In Kwong I, Mother requested an accounting of Stan’s management of her assets and sought to recover title to three properties on a resulting-trust theory. The trial court rejected Mother’s resulting-trust theory but found that she had “a loan relationship with Stan” that entitled her to recover interest on loans made to purchase the properties and proceeds from their rental and refinancing—a total of more than $4.5 million. Jennifer appealed, contending that the court had erred by, inter alia, failing to make certain deductions from the amount that Stan’s estate owed Mother. This court rejected Jennifer’s arguments and affirmed the judgment, which she then satisfied.

Apparently not satisfied with that outcome, Jennifer filed the current action seeking to recover funds from Mother and Brother on three theories: that the judgment in Kwong I gave Mother a double recovery on two promissory notes payable to Mother and Stan; that Mother never repaid a 2008 loan from Stan; and that Mother breached an ongoing duty to pay imputed rent to Stan’s estate for that portion of a jointly owned property that she occupied. The trial court held that the judgment in Kwong I bars all these claims on the grounds of either issue or claim preclusion. We conclude that the court’s ruling is correct as to the first two claims and that, while the third claim may not be precluded in full, it fails on its merits. We will thus affirm the judgment.

Factual and Procedural History

Mother emigrated from China to San Francisco in 1948 to join her husband. They had four children: Larry (i.e., Brother), Jeanne, Harry, and Stan (deceased). Mother and her husband lived frugally and saved small amounts of money allowing them ultimately to purchase two apartment buildings in San Francisco: the Walnut building and later the Union building. Mother, Brother, and Jeanne all believed that Mother solely owned the Union building. Evidence conflicted as to how much the children, including Stan, had contributed to the down payment. The title to the Walnut building and Union building transferred many times among the family members. At the time of Stan’s death, the title to the Walnut building was held one-third by Mother, one-third by Stan, and one-third by Jeanne. Stan held a one-twentieth interest in the Union building and Mother held the rest. Stan accumulated a large real estate portfolio worth as much as $20 million. He bequeathed all of his holdings to his wife Jennifer.

In the present action, Jennifer’s complaint alleges additional facts, not mentioned in this court’s opinion in Kwong I, about certain transactions from January 2008. At that time, Stan refinanced the Walnut property, deriving $734,000 that he deposited in a joint account held by Mother and himself. Stan loaned $523,000 of those funds to two couples—the Klestoffs and Stacks—who executed promissory notes payable to Mother and Stan for $273,000 (the Klestoff note) and $250,000 (the Stack note), respectively. When Stan died in July 2009, Jennifer succeeded to his half interest in each note as executor of his estate. In December 2009, the Stacks paid the balance due on their note. Mother demanded all the proceeds; Jennifer paid her 50 percent and put the rest in escrow. In 2012, Jennifer began directing 50 percent of the Klestoffs’ monthly payments to Mother and Brother. In 2014, the Klestoffs paid the balance due on their note into escrow. The parties disputed how to distribute the amounts paid into the escrow account.

Those disputes were among the disagreements that had led to Kwong I and other litigation. Initially, Mother and Brother filed a probate action. They both filed claims against Stan’s estate that were rejected. Thereafter, Mother and Brother filed Kwong I. As noted above, they alleged causes of action to establish a resulting trust and for an accounting.

At the bench trial in Kwong I, Betty Kwong, who is Brother’s wife and a certified public accountant, testified as an expert witness. She reviewed Stan’s records to try to determine Stan and Mother’s investments. She determined the sources of the down payments for the Walnut and Union buildings. Based on a cash flow analysis, she determined that Mother was entitled to $2,448,000. Mother was owed an additional $273,000 from the refinancing of the Walnut building. Betty Kwong explained that when she analyzed the numbers under a different accounting approach, the disbursement method, she reached a total owed to Mother that was significantly more—$2,966,000. She documented that Stan used money from Mother’s accounts to pay expenses on his own properties. She also accounted for money Stan deposited into Mother’s accounts. Betty calculated the total value of Mother’s claims as $4,571,000.

Mother’s second expert, Everett Harry, calculated that Stan’s estate owed Mother roughly $3.2 million, not including interest, using a third accounting method, the portfolio approach. He explained that both he and Betty determined money that should be credited to Mother for cash flows from the Walnut and Union buildings.

Jennifer’s accounting expert, Sander Stadtler, performed a cash flow analysis similar to that performed by Betty Kwong. Despite the difficulty in performing a complete accounting given the more than 30-year time period and incomplete records, he agreed with the “total bucket” of assets determined by Betty Kwong.

The court appointed a probate referee, who was a CPA, to independently review the financial information. The referee prepared a report for the court in which he relied on Betty’s summary of cash flow. The referee concluded that Mother had loaned Stan $1,218,000 for the Walnut building, $423,000 on the Union building, and $187,000 on a third building. The grand total owed with interest was $4,583,000. Brother had loaned Stan $40,000 for a total owed with interest of $196,000.

The court tentatively adopted the referee’s accounting analysis. In its final statement of decision, the court found that Mother and Brother had failed to show that the properties were subject to a resulting trust. Instead, the court found that the transfers from Mother to Stan were investment loans. It held that Mother was entitled to: her transfers of funds to Stan, proceeds from rents according to her share of ownership in the Walnut and Union properties, and proceeds from refinancing of those properties according to her share of ownership, plus interest. The court awarded Mother $4,583,000.

Jennifer filed a motion to vacate the decision, or in the alternative for a new trial. The motion argued, among other things, that the court had failed to deduct funds received by family members, including funds distributed over the 30-year period. The court denied Jennifer’s motion. The court noted that Mother was clearly owed some amount of money and that it had exercised its equitable powers to determine there was a loan relationship. Given that decision, the referee was charged with determining the amount owed.

In January 2014, the trial court entered a judgment in Kwong I awarding Mother $4,583,000 and Brother $196,000. Jennifer appealed, and in February 2016 this court affirmed in Kwong I.

Jennifer’s complaint in this action alleges that, in March 2016, she agreed to release half of the Klestoff note proceeds from escrow to Mother and Brother. Two months later, however, Mother and Brother filed a new action against Jennifer, San Francisco Superior Court No. CGC-16-549958 (the Klestoff note action), seeking to compel her to immediately release all proceeds of the note to them. The parties settled that action in July 2016 by agreeing to disburse the remaining $275,000 from escrow in equal shares, while reserving the right to litigate the proper division at a later time. In December 2017, Jennifer paid the final portion of the $4.8 million due under the judgment in Kwong I.

Jennifer initiated this action in March 2018. Her complaint alleges that Mother received a double recovery on her interest in the notes: when the Klestoffs and Stacks paid off the notes, Mother received half the proceeds, yet when Jennifer paid the judgment in Kwong I, Mother again received funds equal to half the note proceeds because the referee had included 50 percent of those proceeds in calculating the amount due her.

The complaint also alleges that Mother owns 95 percent of the Union Property and has lived in an apartment there since 1995; that Stan paid a contractor $41,000 in 2008 to remodel Mother’s apartment and make repairs in the building; and that Mother agreed to reimburse him but has not done so. Finally, the complaint alleges that, since Stan owned 5 percent of the Union Property, he (and later his estate) was entitled to 5 percent of the revenue it generates. While Mother and Brother paid Stan and his estate 5 percent of the revenues generated by the units rented to others, they failed to pay him imputed rent equal to 5 percent of the rental value of the unit occupied by Mother.

Based on the alleged double recovery, the complaint seeks declaratory relief and restitution (on a theory of unjust enrichment), and also alleges conversion. The cause of action for restitution also encompasses Jennifer’s claims to recover the alleged unrepaid 2008 loan and imputed rent for Mother’s occupancy of the Union property.

Mother and Brother demurred, arguing that Jennifer’s claims for recovery of the double payment and loan amount are barred by “res judicata”—i.e., by issue preclusion (as to the double recovery) and claim preclusion (as to the loan) —and that the imputed-rent claim fails because cotenants in possession need not pay rent to cotenants out of possession.

The trial court took judicial notice of the transcript of the hearing on Jennifer’s motion to vacate the statement of decision in Kwong I, her opening brief on appeal in that action, and this court’s opinion resolving that appeal, and sustained the demurrer without leave to amend. It held that issue preclusion bars the claims based on double recovery, as this issue was raised and decided in Kwong I, and that claim preclusion bars the loan and rent claims, as Jennifer could have raised those claims in Kwong I. Jennifer has timely appealed.

Discussion

We review de novo an order sustaining a demurrer, assessing on our own whether the complaint states a cause of action as a matter of law. (Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424, 433.) “ ‘ “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ ” ’ ” (Ibid.) “ ‘We affirm if any ground offered in support of the demurrer was well taken but find error if the plaintiff has stated a cause of action under any possible legal theory.’ ” (Ibid.) We “ ‘are not bound by the trial court’s stated reasons, if any . . . ; we review the ruling, not its rationale.’ ” (Ibid.)

1. Issue preclusion bars Jennifer’s claim of double recovery.

“Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. [Citation.] . . . [T]he prior judgment conclusively resolves an issue actually litigated and determined in the first action.” (DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 824.)

After the trial court issued a final statement of decision in Kwong I, Jennifer moved to vacate the decision or for a new trial. At the ensuing hearing, Jennifer’s counsel began his argument by contending that the statement reflected “arithmetic errors,” asserting double recovery on the notes as his prime example: “The first [error] I want to address concerns two notes: A Stack note for $250,000 and . . . the Klestoff note for $272,000 . . . . It’s undisputed that the Stack note was paid off in 2009. [Mother] received half of that note at that time. The other half has been sitting in an escrow since 2009 . . . . That’s undisputed. [¶] . . . [T]he Klestoff note for $272,000 is . . . being paid off. [Mother] will receive 50 percent of that note . . . and she’s also been receiving . . . interest payments continuously since Stan’s death. . . . [¶] [N]one of the facts I’m aware of are disputed [about] those two notes; however, the referee’s report . . . [has] a loan notation for December 31st, 2008 of $518,760. [¶] Now it is also undisputed that most of [the proceeds] from this refinancing of Walnut in 2008 were used in making . . . these two loans, the Stack note and the Klestoff note. And here the referee has apportioned this out to [Jennifer]. . . . The problem . . . is that [Mother and Brother] already received $125,000 of this amount in 2009 and are about to receive . . . their 50 percent share of the Klestoff note. . . . This is a double recovery. They’re getting the same money twice. [¶] . . . [T]here was substantial testimony . . . about the Stack note and the Klestoff note. . . . They’re not a mystery, and yet here it is getting charged twice to defendants.” (Italics added.)

Mother’s counsel responded by noting that, while the parties had advocated three competing accounting methods—the cash flow, disbursement, and portfolio approaches—the “arithmetic errors” argument focused solely on the cash flow approach, which the court had not adopted. Turning specifically to the “Klestoff and Stack notes,” Mother’s counsel said, “it is true that those notes are half in [Mother]’s name” and “true that she received half of the principal on the Stack note and might at some time receive part of the principal on the Klestoff note,” but he maintained that the claimed deductions “are not proper . . . [under] the disbursement approach or the portfolio approach.”

After further argument, the court noted that when it had rejected the resulting-trust theory and “exercised its equitable powers [to find] a loan relationship,” the referee became “charged with saying, ‘well, what does that add up to?’ ” The court viewed Jennifer’s motion as asking the court to “do a new accounting by myself, which I don’t think I can do.” A retrial “would just land us in a dispute over a different set of numbers, . . . and I think we have to move on.” Jennifer’s counsel persisted: “I didn’t hear anybody say, ‘oh, no you’re not double counting those.’ They are. It’s the same money,” and Mother’s counsel responded that the court’s decision “is supported by the disbursement approach and the portfolio approach and you’re exercising your discretion in the numbers that you’ve come up with . . . with the help of the referee.” Ultimately the court concluded the argument by stating, “I think we need to proceed to judgment on this and I’m prepared to do that. I’m going to deny the motion.”

When Jennifer appealed the ensuing judgment, her first contention was that the trial court had “adopted [Mother and Brother’s] cash flow accounting method, but without [making] deductions required by law and [by their] concessions.” Her brief stated: “[The award] includes a windfall of double recovery. . . . [Mother and Brother] conceded receipt of substantial sums from Stan. But they also conceded that those sums should reduce their recovery . . . . Nonetheless, the court ignored all such reductions.” The brief quoted Mother and Brother’s alleged concessions that Jennifer was entitled to deductions for payments they had received, including “payments to [Mother] for her interest in . . . the Stack and Klestoff notes.” The brief also described a chart of deductions Mother had submitted below; a copy of that chart appended to the brief includes a $353,000 deduction labeled “Less Klestoff & Stack Notes.” Jennifer added that Mother’s written closing argument had conceded a need for deductions including one for payments to her on the two promissory notes. Jennifer’s brief asked this court to order the award reduced to account for the assertedly conceded deductions for the notes and other matters.

This court did not do so and instead affirmed the judgment. The opinion in Kwong I rejects Jennifer’s contentions that the trial court adopted a cash-flow approach and that Mother and Brother made binding “judicial admissions concerning . . . deductions or credits.” The opinion states that Jennifer “misidentifies [some] statements as admissions,” citing the notes as an example: “In reference to the Klestoff and Stack notes, [Mother and Brother] stated they ‘agree with this credit in princip[le],’ but because [Jennifer] has collected the monthly payments on the notes and not turned them over to [Mother], [Jennifer] is not entitled to a credit.” This court held that “[Jennifer]’s claim for credits and deductions was considered by the trial court prior to its statement of decision,” and substantial evidence supports its judgment.

In the current action, the trial court correctly held that Jennifer litigated her contention that the award incorrectly gave Mother a double recovery on the notes, and that the trial court and this court rejected that contention. Jennifer describes the double-recovery issue as “briefly discussed in post-trial arguments” in Kwong I but not “fully litigated or actually decided,” noting that the trial court based its award on the existence of a loan relationship, a theory of liability that Mother and Brother had not asserted. But after the court issued its statement of decision relying on a loan theory to award Mother a sum of money that may well include a double recovery on the notes, Jennifer objected to the award on that basis in her motion to vacate, and the court acknowledged and rejected her argument. She prominently renewed the argument on appeal, and this court rejected it.

Jennifer contends that, because she raised the issue in a posttrial motion, it does not qualify as “actually litigated” or “necessarily determined” in Kwong I. She cites Groves v. Peterson (2002) 100 Cal.App.4th 659, but that opinion concerns whether issue preclusion applies “where the issue is whether the prior denial of a motion in [an] underlying case to set aside a . . . default judgment should be given [issue-preclusive] effect so as to bar a subsequent independent action in equity to set aside the prior judgment.” (Id. at p. 667.) It is long settled that “such prior order does not [trigger issue preclusion in] the subsequent action.” (Ibid.) The procedure on a motion to set aside a judgment “does not involve all the aspects of full litigation” that are available in a subsequent equitable action to set aside a judgment. (Id. at p. 668.) The rule noted in Groves v. Peterson thus enables parties “to resort first to the convenient and expeditious remedy [of a motion to set aside], without penalty of the bar of [issue preclusion] if the motion is denied.” (Ibid.)

The present situation is not analogous. The factual aspects of the double-recovery issue were fully litigated during the previous nine-day trial. In Kwong I, Jennifer’s counsel stressed that the facts supporting her double-recovery claim were settled: “[T]here was substantial testimony at trial from Betty Kwong, [Mother’s] expert, and from others about the Stack note and the Klestoff note. We heard about those. They’re not a mystery, and yet here it is getting charged twice to defendants.” Indeed, the facts were undisputed: “I didn’t hear anybody say, oh, no you’re not double counting those. They are. It’s the same money.” Mother’s counsel never disputed Jennifer’s counsel’s repeated statements that the facts were undisputed, arguing instead that any double recovery from a cash-flow perspective was irrelevant. On appeal, Jennifer listed Mother’s asserted concessions about the notes and reiterated that the facts were settled. Her failure to prevail on the double-recovery issue in Kwong I did not result from any procedural limitations that precluded her from fully litigating the issue.

Jennifer contends that because the statement of decision in Kwong I did not discuss the notes, it is impossible “to determine that the court in [Kwong I] actually made a final ruling as to [their] ownership.” Although the statement of decision does not discuss the notes, Jennifer raised the double-recovery issue in her motion to vacate that statement; at the hearing, the trial court acknowledged the argument, yet denied the motion. Jennifer cites no authority indicating that the court must have resolved an issue in writing for preclusion to arise, and that is not the law.

Finally, Jennifer contends that Mother and Brother’s subsequent filing of the Klestoff note action shows that even they did not “believe[] the matter had been adjudicated.” The point is irrelevant. Had the court relied on their claim in that litigation, they presumably would have been barred from arguing otherwise by the doctrine of judicial estoppel. (See ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.) But the court did not do so. Because the parties settled the Klestoff note action before the court could award any relief, the filing of that action does not give rise to a judicial estoppel.

2. Claim preclusion bars Jennifer’s claim regarding the alleged 2008 loan.

“Claim preclusion . . . acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties.” (DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 824, citing Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) “To determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts have ‘consistently applied the “primary rights” theory.’ ” (Boeken, supra, at p. 797.) Under that theory, “ ‘[a] cause of action . . . arises out of an antecedent primary right and corresponding duty and the delict or breach of such primary right and duty . . . . “Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action.” ’ ” (Id. at pp. 797–798.) For purposes of claim preclusion, the “cause of action” is thus “the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory . . . advanced.” (Id. at p. 798.) If a cause of action “was within the scope of [a prior] action, related to the subject-matter and relevant to the issues, so that it could have been raised, the [prior] judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.” (Sutphin v. Speik (1940) 15 Cal.2d 195, 202.)

These principles make clear that claim preclusion bars Jennifer’s cause of action for restitution based on Mother’s failure to repay the alleged 2008 loan. The complaint alleges that Mother has been unjustly enriched because Stan paid a contractor $41,000 to remodel her unit and to repair the Union building, and she breached her duty to repay him. The complaint also alleges that “[t]hese funds are . . . reflected in the accounting performed by the [referee] in support of the [judgment in Kwong I]” and were “overpaid to [Mother and Brother] as the judgment creditors, and should be returned and reimbursed to [Jennifer].” The complaint thus shows on its face that in Kwong I Jennifer could have raised her claim that Stan’s estate was entitled to a credit or offset for the loan against Mother’s recovery on her accounting cause of action. In litigating that cause of action, both sides offered expert financial testimony analyzing the flow of loans, revenues, and payments between Mother, Stan, and other relatives with regard to the Union building. Ultimately, the court found Mother entitled to recover sums reflecting her share of ownership of that building.

Jennifer contends that her cause of action for Mother’s failure to repay the loan “arise[s] out of different transactions and involves different rights than the [prior] action” because Mother and Brother brought that action “to assert they were the owners of three properties held in Stan[’s] name, under a resulting trust theory,” and Mother’s failure to repay a loan related to one of those properties is irrelevant to whether she was the beneficial owner of that property. Nevertheless, Mother’s alleged failure to repay a loan used to remodel the Union building was related to her cause of action for an accounting—a cause of action that was litigated to judgment in Kwong I. Jennifer could and should have asserted the estate’s right to a credit based on the loan as part of the accounting in Kwong I.

3. Jennifer’s cause of action for imputed rent fails on the merits.

Jennifer alleges that, because Stan (and then his estate) owned 5 percent of the Union building, as adjudicated in Kwong I, Mother was obliged to pay Stan imputed rent on his 5 percent share of the unit that she occupies in that building. The trial court held that claim preclusion also bars this cause of action. While that ruling appears correct insofar as Jennifer seeks unpaid rent for periods preceding the judgment in Kwong I, it is less clear that the judgment precludes litigation of that cause of action as to periods following that judgment. Arguably, each passing month gives rise to a new cause of action for unpaid imputed rent. (See generally Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1341 [“Under the continuous accrual doctrine each breach of a recurring obligation is independently actionable.”].)

We need not explore how the doctrines of claim preclusion and continuous accrual interact because the cause of action for imputed rent fails on its merits as to all time periods. As Mother argued below, tenants in common are simply not obliged to pay one another rent. (Nevarov v. Nevarov (1953) 117 Cal.App.2d 581, 585 [“It seems to be well settled that each tenant in common has a right to occupy the property, and that in the absence of an agreement one cannot collect rent from another who has exercised that right.”].) “The reason of the doctrine is obvious,” as our Supreme Court explained in one of its earliest opinions: “Each tenant is entitled to the occupation of the premises; neither can exclude the other; and if the sole occupation by one co-tenant could render him liable to the other, it would be in the power of the latter, by voluntarily remaining out of possession, to keep out his companion also, except upon the condition of the payment of rent.” (Pico v. Columbet (1859) 12 Cal. 414, 419–420.) That rule plainly bars Jennifer’s claim, as she has implicitly conceded.

Disposition

The judgment is affirmed. Respondents shall recover their costs on appeal.

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POLLAK, P. J.

WE CONCUR:

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STREETER, J.

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BROWN, J.

A155893

Case Number: 18STCV00819 Hearing Date: January 22, 2020 Dept: 29

The Motions for Summary Judgment by Defendants Shapour Daniel Golshani, M.D. and Rexford Surgical Institute, Inc. are GRANTED. Code Civ. Proc. § 437c(p)(2).

In the complaint, Plaintiff alleges that Defendants were negligent in providing care and treatment to Plaintiff in connection with a bariatric surgery called a “gastric plication.” The surgery was performed by Defendant Donald James Waldrep, M.D. at Defendant Rexford Surgical Institute, Inc. (“Rexford”). Plaintiff was referred to Dr. Waldrep by Defendant Shapour Daniel Golshani, M.D. Plaintiff asserts claims for negligence against Waldrep, Golshani, and Rexford and claims for battery against Waldrep and Rexford. Defendants Golshani and Rexford move for summary judgment, claiming that the undisputed evidence establishes that their treatment complied with the applicable standard of care and that no negligent act or omission by those defendants caused or contributed to Plaintiff’s injury. Plaintiff filed notices of non-opposition to these motions and no other party has opposed them.

To make out a claim for medical negligence, a plaintiff must establish the following elements: “’(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.’” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607.

The required standard of care owed by a medical professional is a matter peculiarly within the knowledge of experts. Hanson at 606–607. The element of causation must also be proven with expert testimony. Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402.

Here, Dr. Golshani presented evidence sufficient to meet his initial burden that he acted within the applicable standard of care in connection with his consultation with and referral of Plaintiff. Dr. Golshani presents the declaration of Stephen D. Bresnick, M.D., a board certified plastic surgeon who is qualified to testify as an expert in this matter. Dr. Bresnick has reviewed the relevant medical records and other relevant documents and opines that Dr. Golshani’s actions complied with the prevailing standard of care at all times. He specifically opined that Dr. Golshani correctly concluded that Plaintiff was not a candidate for liposuction as a weight loss treatment and it was reasonable and within the standard of care for Dr. Golshani to refer Plaintiff to a bariatric surgeon such as Dr. Waldrep for consultation about other weight loss options.

Dr. Bresnick’s declaration is sufficient to shift the burden to Plaintiff to present controverting evidence to raise a triable issue of fact. Plaintiff has not opposed the motion and has not presented any controverting evidence. Dr. Golshani is thus entitled to summary judgment.

Rexford has also presented sufficient evidence to meet its initial burden as to whether Rexford and its staff met the applicable standard of care. Rexford also relies on a declaration from Dr. Bresnick, who reviewed the records relevant to the claim against Rexford. Plaintiff did not object to the declaration of Dr. Bresnick, so the Court considers it here. Dr. Bresnick opines that the care provided by the staff at Rexford Surgical Institute at all times complied with the standard of care that would be expected of at an accredited surgery center. Plaintiff has not provided any controverting evidence to raise a triable issue of fact on this issue.

Rexford has also provided sufficient evidence to meet its initial burden of establishing that it is not vicariously liable for the alleged negligence or battery by Dr. Waldrep. For vicarious liability to be imposed on a defendant, a plaintiff must prove that the negligent actor was an employee or agent of the defendant. Ermoian v. Desert Hospital (2007) 152 Cal. App. 4th 475, 501.

“An agent is one who represents another, called the principal, in dealings with third persons. In California agency is either actual or ostensible. An agency is actual when the agent is really employed by the principal. An agency is ostensible when a principal causes a third person to believe another to be his agent, who is not really employed by him. An agent has the authority that the principal, actually or ostensibly, confers upon him.” J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 403 (internal citations and quotation marks omitted). Neither type of agency can “ ‘be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency.’ ” Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1133-1134.

The existence of an agency relationship is a question of fact and summary judgment is improper where triable issues of material fact exist as to whether there is an agency. (Universal Bank v. Lawyers Title Ins. Corp. (1997) 62 Cal.App.4th 1062, 1066. “Nonetheless, summary judgment is appropriate where … the evidence is undisputed and susceptible of but a single inference.” Ibid.; accord, Emery v. Visa Internat. Service Assn. (2002) 95 Cal.App.4th 952, 960.

Here, Rexford’s evidence is sufficient to meet its initial burden to establish that Dr. Waldrep was not an actual employee or agent of Rexford; instead, he was an independent contractor. In addition, Rexford’s evidence is sufficient to meet its burden on ostensible agency. The condition of admission form signed by Plaintiff specifically states that the physicians providing services are independent contractors, not employees or agents of Rexford. See Mejia v. Community Hospital of San Bernardino (2002) 99 Cal. App. 4th 1448, 1454-55 (ostensible agency is negated where the hospital gives actual notice to the patient of the true relationship between the hospital and the physician). Rexford’s evidence is also sufficient to meet the initial burden that it was Dr. Waldrep, not Rexford, who was responsible for obtaining the Plaintiff’s informed consent before performing the procedure. The burden thus shifted to Plaintiff on each of these issues, and Plaintiff has not provided any controverting evidence.

The Court thus GRANTS summary judgment in favor of Defendants Shapour Daniel Golshani, M.D. and Rexford Surgical Institute, Inc. and against Plaintiff Elinr Massachi.

The moving party is ordered to give notice.