Aryeh v. Law Offices of Joseph Daneshrad
Filed 1/6/14 Aryeh v. Law
Offices of Joseph Daneshrad CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
JAMSHID ARYEH,
Plaintiff and Appellant,
v.
LAW OFFICES OF
JOSEPH DANESHRAD,
Defendant and Respondent.
B248014
(Los
Angeles County
Super. Ct. No.
BC476302)
APPEAL
from a judgment of the Superior Court of
Los Angeles County.
Robert L. Hess, Judge. Affirmed.
Jamshid
Aryeh, in pro. per., for Plaintiff and Appellant.
Daneshrad
Law Firm, Lyle River for Defendant and Respondent.
___________________________________________________
Plaintiff and appellant Jamshid
Aryeh sued the Law Offices of Joseph Daneshrad (Daneshrad) for legal
malpractice. Aryeh appeals after the
Aryeh’s seconded amended complaint without leave to amend. We affirm.
PROCEDURAL BACKGROUND
Daneshrad
represented Aryeh in a marital dissolution
action for about two years, substituting out of the case in January 2011.
persona, sued Daneshrad for legal malpractice on January 5, 2012. Daneshrad filed a demurrer
to Aryeh’s complaint, but before hearing on the demurrer was held, Aryeh filed a
first amended complaint. A demurrer to
the first amended complaint was sustained on September 25, 2012. Based upon
court that he had retained counsel, Aryeh was given 10 days to amend his
complaint. On October 4, 2012, Aryeh filed his second amended complaint, still acting in propria
persona.
Daneshrad
filed a demurrer to the second amended complaint on October 18, 2012, setting a hearing date of November 15, 2012. Soon after, Aryeh actually
retained counsel, Shahrokh Mokhtarzadeh, who substituted into the case on October 25, 2012. No opposition was filed to
the pending demurrer, however. Mokhtarzadeh
appeared at the demurrer hearing and conceded the demurrer was meritorious. At the hearing, he presented an
leave to file a third amended complaint, and a proposed third amended complaint
was submitted. The trial court examined
the proposed third amended complaint, found that it “was so facially deficient
that there could be no point to allowing it to be filed,†and denied the ex
parte application. It then sustained the
demurrer to the second amended complaint and denied leave to amend.
On
November 26,
2012, Mokhtarzadeh filed a notice of motion
seeking reconsideration of the November 15, 2012 ruling and for
leave to file a third amended complaint.
No memorandum of points and authorities or other documents accompanied
the notice of motion. On December 13, 2012, Mokhtarzadeh filed an “amended†notice of motion for
reconsideration, which apparently attached moving papers. The trial court noted that although the
motion purported to be based on Code of Civil Procedure section 1008, it failed
to set forth any “‘new or different facts, circumstances, or law.’†Additionally, the motion included a
declaration from Mokhtarzadeh supposedly seeking relief pursuant to Code of
Civil Procedure section 473, subdivision (b) on the basis of “mistake,
inadvertence, surprise, or excusable neglect.â€
The declaration admitted to no error, however, but instead criticized
the trial court for making an unclear order when allowing leave to file the
second amended complaint, disregarding its own order, and giving Aryeh
insufficient time to prepare the second amended complaint.
The
motion for reconsideration was heard on January 14, 2013. Aryeh was present in the courtroom when the
matter was called but his attorney, Mokhtarzadeh, was not. The court denied the motion on the merits and
Daneshrad’s attorney was directed to give notice.
On
January 17,
2013, Mokhtarzadeh filed an ex parte
application for relief from the January 14 order. The court granted an order shortening time
and Mokhtarzadeh submitted moving papers.
His accompanying declaration explained his absence on the morning of
January 14 by stating that he was scheduled to make three separate court
appearances that morning, and he telephoned each department before 8:30 a.m. to advise courtroom staff that he could be running late. Daneshrad’s opposition questioned the
veracity of the declaration, pointing out inconsistencies in Mokhtarzadeh’s
timeline and submitting calendar information from the superior court’s website
casting doubt on Mokhtarzadeh’s claim of having multiple hearings on January
14. At the February 4, 2013 hearing on the matter, Mokhtarzadeh revised his story on the
multiple court appearances, and said that he could not recall who in the
department he had spoken with on the telephone on the morning of January
14. The trial court expressed skepticism
that Mokhtarzadeh actually made such a call, as courtroom staff were questioned
and responded that they did not receive a call from him.
Nevertheless,
the trial court granted the motion for relief from error and revisited the
merits of the December 2012 motion for reconsideration. The court denied the motion, finding that the
motion for reconsideration lacked merit.
Judgment
was entered on March 19, 2013. Aryeh
timely appealed.
DISCUSSION
On
appeal, Aryeh argues that the order sustaining the demurrer to the second
amended complaint was incorrect, that he should have been granted leave to
amend, and that “[r]elief should have been granted under [Code of Civil
Procedure section] 473
[, subdivision] (b) due to attorney’s
affidavit of fault.â€
Each
of these arguments is scuttled by Aryeh’s failure to submit an adequate
record. “‘A judgment or order of the
lower court is presumed correct. All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error must be
affirmatively shown. This is not only a
general principle of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’†(
557, 564.) “‘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.’ (Mountain
Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051,
fn. 9; accord, Estrada v. Ramirez
(1999) 71 Cal.App.4th 618, 620, fn. 1).â€
(Gee v. American Realty &
Construction, Inc. (2002) 99 Cal. App 4th 1412, 1416.)
In
sustaining the demurrer to the second amended complaint, the trial court
granted a request for judicial notice made by Daneshrad.
Court contains neither the demurrer itself nor the request for judicial
notice. Because we have not been
provided with these relevant materials, it is not possible for us to find that
the trial court’s decision to sustain the demurrer was erroneous.
Nor
are we able to conclude that Aryeh should have been granted leave to
amend. As a party asserting that
amendment is warranted, Aryeh must demonstrate to this Court how he can amend
his complaint to state a cause of action.
(Smith v. State Farm Mutual
Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.) Aryeh has provided no such
demonstration. Furthermore, although he
implies that the proposed third amended complaint submitted to the trial court
could have remedied the second amended complaint’s defects, the record contains
no copy of the proposed third amended complaint.
Finally,
this Court is unable to find that Aryeh was entitled to relief under Code of Civil
Procedure section 473, subdivision (b) because Aryeh has failed to submit the
papers in which such a request was made, and any opposition.
guess at the contents of documents filed in the trial court. Aryeh’s status as a propria persona litigant
does not allow us to overlook the deficiencies in the record. (See First
American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1;
(1994) 24 Cal.App.4th 1113, 1125 [“‘a litigant . . . appearing in propria
persona . . . is entitled to the same, but no greater, consideration than other
litigants and attorneys’â€].)
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J. FERNS,
J.*
deficient. Most of the background facts
summarized here are taken directly from an order prepared by the trial court in
February 2013, which does appear in the record.
notice of a matter when deciding a demurrer.
(Code Civ. Proc., § 430.70.)
