Dastmalchi v. OOC
Filed 1/30/14 Dastmalchi v. OOC CA1/2
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opinion has not been certified for publication or ordered published for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 TWO
MOHAMMAD DASTMALCHI,
Plaintiff and Appellant,
v.
OOC, INC., et al.,
Defendants and Respondents.
A137029
(
No. RG09489286)
Mohammad
Dastmalchi brought several causes of action against defendants Yavor Trandev,
Julio Rodriguez, and OOC, Inc. (OOC) in the Alameda
County Superior Court. They were based
on his allegations that, while working for OOC, he was assaulted by Trandev and
Rodriguez, who were acting within the scope and duties of their employment with
OOC, resulting in his physical
injury and termination of employment.
Dastmalchi appeals from the judgment in favor of defendants, entered
after a jury trial verdict against him.
We affirm the judgment because Dastmalchi has not provided a sufficient
record to overcome the presumption that the judgment is correct.
Dastmalchi
elected to designate and file with this court pursuant to
appendix, which he describes as a “trial court clerk’s transcript.†It contains a mass of documents that appear to
have been filed with the trial court, but which are not identified by indices required
by our local rules (Cal. Rules of Ct., rules 8.124(d)(1), 8.144(b)(1)), are not
separated by any dividers, and appear, at least in some instances, to be out of
order. Dastmalchi did not designate that
a reporter’s transcript be included in the record. We summarize the pertinent facts and
proceedings that we can determine from this limited and confusing record.
In December
2009, Dastmalchi, represented by counsel, filed his complaint against defendants. He alleged causes of action against all three
for battery, infliction of emotional distress, and violations of
Code section 12940 et seq. (for harassment).
He alleged additional causes of action against OOC for violations of
Government Code section 1290 et seq. (for discrimination and retaliation), and
Labor Code section 1102.5.
Dastmalchi
alleged the following facts in support of his causes of action: In August 2008, Dastmalchi, Persian, Muslim,
and born in Iran, was a pizza
delivery employee of OOC, doing business as Extreme Pizza, in Berkeley, California. Trandev and Rodriguez were also employed
there, as a senior delivery person and a manager respectively. In the course of his employment, Dastmalchi
was repeatedly called “Mo†instead of his full name, Mohammad, despite his
repeated requests that he be called by his full name, which is also the name of
the prophet Mohammad, a revered figure in the Muslim religion.
Dastmalchi
further alleged that an incident occurred on August
29, 2008, that resulted in his physical injury. He was reprimanded that day by Trandev for
placing a piece of paper with his name, “Mohammad,†into the sleeve of an
insulating pizza delivery bag. He removed the paper and placed it into the sleeve of another bag,
which Trandev tried to forcibly remove from his hands. Rodriguez then restrained Dastmalchi while
Trandev punched and slapped him in the head and chest, causing Dastmalchi to
suffer a fractured nose, difficulty
breathing, hearing loss, and an
him to receive immediate medical attention.
He was forced to remain at work for hours after the assault, but he eventually
sought medical attention at
Alta Bates Hospital in Berkeley later that day.
According to Dastmalchi, Rodriguez
falsely claimed Dastmalchi provoked the attack by shoving Trandev, although
Trandev admitted otherwise to Rodriguez.
OOC terminated Dastmalchi’s employment without good cause after he
reported the attack to the police. OOC
management told him he was terminated after headquarters instructed that both he
and Trandev be fired. OOC also denied
his application to become a manager despite his experience and
qualifications. Dastmalchi was informed
and believed that defendants perceived him to be an Arab, and that his race,
religion, and national origin were substantial factors motivating them to take
their wrongful actions against him.
In June 2012, a jury trial was
conducted. The jury found against
Dastmalchi on all causes of actions.
rejected his contentions that either Trandev or Rodriguez touched him with the
intent to harm or offend him. The jury
also rejected his claims that the two were acting in the course and scope of
their employment with OOC. Judgment was
entered in favor of defendants, from which Dastmalchi timely appealed.
Dastmalchi, acting in
propria persona, filed a notice designating his record of appeal, in which he
elected to use an appendix and to proceed without a record of the oral
proceedings in the superior court. In
doing so, Dastmalchi indicated, “I understand that without a record of the oral
proceedings in the superior court, the Court of Appeal will not be able to consider
what was said during those proceeding in determining whether an error was made
in the superior court proceedings.â€
Subsequently,
still acting in propria persona, Dastmalchi filed in this court a motion to
augment the record with a reporter’s transcript, which we denied. When he attempted to file the reporter’s
transcript with his opening brief, defendants filed a motion to strike the
reporter’s transcript. We treated his
submission as a motion for reconsideration of our prior order, denied the
motion, and denied defendants’ motion because the reporter’s transcript was not
filed. Accordingly, the only record
before us is Dastmalchi’s two-volume appendix.
Dastmalchi,
still acting in propria persona, filed an opening brief. Later, he retained counsel, who filed a
renewed motion to augment the record on appeal, which we also denied. His counsel then filed a reply brief on his
behalf.
Dastmalchi argues the trial
court prejudicially abused its discretion in three evidentiary rulings. That is, the court erred by excluding
testimony from a physician’s assistant at the Alta Bates Hospital emergency
room who examined him on the day of the incident, diagnosed that he had a nasal
fracture, and treated him; ordering that medical records be redacted to
eliminate all references to the diagnosis that Dastmalchi had a nasal fracture;
and excluding evidence of the radiology report that confirmed the physician
assistant’s diagnosis was correct.
Dastmalchi
also argues the defense verdict was not supported by substantial evidence. Specifically, there was evidence that Trandev
punched Dastmalchi, and no competent evidence that Dastmalchi’s nasal fracture
was caused by anything other than a punch from Trandev or that Dastmalchi
shoved Trandev. Furthermore, OOC did not
investigate his charge of discrimination and fired him because he complained to
the police.
We note
at the onset the black-letter rule that “[w]hen a
litigant is appearing in propria persona, he is
entitled to the same, but no greater, consideration
than other litigants and attorneys [citations].
Further, the in propria persona litigant is held
to the same restrictive rules of procedure as an
attorney.†(
followed in
Cal.App.4th 1434, 1444.) We
consider Dastmalchi’s appellate claims with these rules in mind and conclude
that we must reject them because, as defendants argue, he has not provided a
record from which we can examine his contentions and arguments.
The “cardinal rule of appellate review†is that appealed judgments and orders are correct. (Foust
v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 (
Cal.3d 557, 564.) “ ‘In the
absence of a contrary showing in the record, all presumptions in favor of the
trial court’s action will be made by the appellate court. “[I]f any matters could have been presented
to the court below which would have authorized the order complained of, it will
be presumed that such matters were presented.†’ [Citation.]
This general principle of appellate practice is an aspect of the
constitutional doctrine of reversible error.
[Citation.] ‘ “A necessary
corollary to this rule is that if the record is inadequate for meaningful
review, the appellant defaults and the decision of the trial court should be
affirmed.†’ [Citation.] ‘Consequently, [appellant] has the burden of
providing an adequate record.
[Citation.] Failure to provide an
adequate record on an issue requires that the issue be resolved against
[appellant].’ †(Foust, at p. 187;
Dastmalchi
does not direct us to anything in the record, nor have we found anything,
referring to the trial court’s evidentiary rulings that are the basis for
Dastmalchi’s first category of claims.
Similarly, we have no record from which to evaluate whether or not there
was substantial evidence presented at trial to support the jury’s verdict. His counsel argues in his reply brief that,
although the submitted record is sparse, we may glean from it, along with the
exhibits lodged with this court, that the trial court committed prejudicial
error, including by excluding testimony from the physician’s assistant and the
evidence of the radiology report. This
is simply not the case. We have nothing
before us sufficiently establishing what the trial court excluded or why it may
have done so. Therefore, we are required
to resolve Dastmalchi’s appellate claims against him. (Foust,
supra, 198 Cal.App.4th at p. 187.)
We
have no need to further address the issues debated between the parties. We note only, without deciding the matter,
that the exhibit 15 lodged by Dastmalchi with this court, which apparently was
admitted into evidence at trial, contains the contents of an emergency room
note by the Alta Bates Hospital physician’s assistant referred to by
Dastmalchi, made on the day of the incident.
It indicates that Dastmalchi appeared to have a subtle, nondisplaced
nasal fracture, and that radiology was pending.
This evidence was before the jury in rendering its defense verdict. Even given Dastmalchi’s contention that the
trial court’s evidentiary rulings undermined the usefulness of this exhibit to
his case, if this note was put before the jury, it is more likely than not that,
were there any error by the trial court in its evidentiary rulings, we would
conclude it was harmless.
The
judgment is affirmed. Defendants are
awarded costs of appeal.
_________________________
Brick,
J.*
We concur:
_________________________
Haerle, Acting
P.J.
_________________________
Richman, J.
* Judge of the Alameda County
Superior Court, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
Trandev’s motion for summary judgment regarding all but the battery and infliction
of emotional distress causes of action against him. Defendants cite to motion papers in the
record, but not to a court ruling. Regardless,
the court’s ruling is not pertinent to our determinations here.
