Opinion
A150491
08-08-2017
SYED N. ALI, Plaintiff and Appellant, v. OLD REPUBLIC HOME PROTECTION COMPANY, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSN161683)
In this opinion, we address the motion by defendant/respondent Old Republic Home Protection Company, Inc. (Old Republic) to dismiss the appeal of, and impose monetary sanctions against, plaintiff/appellant Syed N. Ali. Old Republic reasons that the appeal pending before us is patently frivolous and that the brief filed in support of it is in violation of mandatory California Rules of Court. For reasons set forth below, we agree the appeal should be dismissed, yet decline to impose monetary sanctions.
Ali purchased from Old Republic a home protection plan for a rental property he owned in Lake Elsinore that became effective for one year in January 2014 (hereinafter, "contract"). Once the contract expired, Ali renewed it for one additional year, beginning on January 9, 2015. Among other terms, the contract included a clause providing that any and all disputes arising between the parties shall be settled by final and binding arbitration conducted by the America Arbitration Association ("AAA").
On November 10, 2015, Ali filed a demand for arbitration with AAA pursuant to the contract that asserted claims for, among other things, breach of contract, professional negligence, real property damage, loss of income, and intentional misrepresentation. Ali thereafter filed the operative "Complaint" on July 19, 2016, which added claims for further property damage and financial losses.
Following a preliminary hearing, the appointed arbitrator issued a scheduling order that, among other things, stated that, per the parties' agreement and in accordance with the applicable AAA rules, the dispute would be decided based on "documents only" without live testimony or argument. Pursuant to this order, the parties thereafter submitted documents, including exhibits, supporting their respective positions. Ali, for his part, submitted via email 144 exhibits.
Ali first sent Old Republic his 144 exhibits on June 7, 2016, when he attached copies to an earlier version of his Complaint.
On August 30, 2016, the arbitrator issued her award. Confirming that she had, among other things, read Ali's Complaint and his exhibits, the arbitrator concluded: "The evidence produced does not support any of the causes of action in Claimant's Complaint. Specifically, there was no breach of contract by Respondent. Respondent complied with its obligations under the Home Protection Plan ("Plan") by dispatching service providers to repair covered problems. Claimant refused to accept some services and demanded coverage beyond that provided in the Plan. Respondent was not liable for any damages consequential to the work done by the service providers. In fact, Claimant pursued the remedies against the insurance carrier of one of the service providers that he believed had caused damage to his property. Respondent required its service providers to carry insurance. [¶] Accordingly, Claimant is to take nothing by his Complaint."
The arbitrator ordered Old Republic to pay the filing and arbitrator fees after concluding Ali's Complaint was not frivolous. --------
In September 2016, Ali emailed the AAA case manager several times to express disagreement with the arbitrator's award and to request "clarification" and "validation" as to whether: (1) the arbitrator was provided a complete set of his exhibits; and (2) the arbitrator had in fact reviewed those exhibits. In particular, Ali's September 12, 2016 email to the case manager explained his request as follows: "Since this was a Paper Hearing, I do like to request AAA to investigate the above facts, and do a formal hearing so it is make sure [sic] that all supporting exhibit were 1) presented 2) reviewed and 3) weighted properly to offer fair justice to consumer rather [sic] 'Blind Justice' using paper only hearing, which I was not sure how it can be relied and guaranteed the integrity of the AAA process."
On September 13, 2016, AAA wrote to both parties to advise that it was treating Ali's email(s) as a "request for modification/clarification" of the August 30, 2016 arbitrator's award, and offered Old Republic the opportunity to respond, which it did on September 19, 2016.
On October 7, 2016, after receiving several additional emails from Ali restating his concerns that the hearing had been unjust and that the arbitrator had not received and considered his evidence, AAA advised the parties in writing that the arbitrator declined to modify the arbitration award. AAA further advised: "The Arbitrator wanted to draw the parties' attention to the list of documents that were indicated in the award dated August 30, 2016." As mentioned above, the arbitrator's list of reviewed documents included "Claimant's Exhibits."
On October 13, 2016, AAA again wrote to both parties, advising: "The matter is now closed and the arbitrator has ruled on the issue. The Arbitrator and the AAA have no further involvement in the process." With this letter, AAA enclosed a copy of the rules governing challenges to arbitration awards.
Meanwhile, on September 12, 2016, Old Republic filed a Petition to Confirm Contractual Arbitration Award in Contra Costa Superior Court. Ali filed an opposition, requesting that the trial court dismiss the petition and vacate the arbitration award. With his opposition, Ali also submitted to the trial court copies of the 144 exhibits supporting his arbitration claims, as well as a declaration and supplemental declaration supporting his request to vacate the arbitration award.
A hearing on the petition was ultimately held December 1, 2016, prior to which the trial court issued a tentative ruling to grant Old Republic's petition to confirm the award. This tentative ruling included the following statements by the trial court: "While [Code of Civil Procedure section] 1286.2(a)(5) permits a court to vacate an award if the arbitrator failed to consider material evidence, respondent [Ali] has not proved that the arbitrator . . . failed to consider evidence or that any evidence she failed to consider was material. The arbitration award states that the arbitrator considered 'Claimant's Exhibits.' Respondent [Ali] has not submitted admissible evidence that this statement is untrue." (Italics added.)
No argument was requested by the parties and the tentative ruling became the final order of the court on December 20, 2016. In this order, the trial court denied Old Republic's related motion for sanctions against Ali, noting that Ali was not a licensed attorney and had drafted the legal papers himself. The trial court also confirmed in this order that it had "considered all the pleadings and papers filed in connection with the [petition]" before reaching its decision. Judgment was entered on January 10, 2017, followed by Ali's timely notice of appeal.
Turning to the motion presently before this court, it is well-established that "California courts have the inherent power to dismiss frivolous appeals. (See Ferguson v. Keays (1971) 4 Cal.3d 649, 658 [94 Cal.Rptr. 398, 484 P.2d 70] ['we emphasize that the appellate courts possess the further inherent power to summarily dismiss any action or appeal which has as its object to delay, vex, or harass the opposing party or the court, or is based upon wholly sham or frivolous grounds']; Zimmerman v. Drexel Burnham (1988) 205 Cal.App.3d 153, 161 ['Appellate courts have an inherent power to summarily dismiss any appeal which is designed for delay or which is based on sham or frivolous grounds.'].) Of course, it is a power that should not be used except in the absolutely clearest cases." (People ex el. Lockler v. Brar (2004) 115 Cal.App.4th 1315, 1318 (Brar). See also In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 ["an appeal should be held to be frivolous only when it is prosecuted for an improper motive -- to harass the respondent or delay the effect of an adverse judgment -- or when it indisputably has no merit -- when any reasonable attorney would agree that the appeal is totally and completely without merit"].)
Here, the only arguments set forth in Ali's opening brief for reversing the judgment are that the trial court erred by confirming the arbitration award: (1) where the award was entered "without the arbitrator reviewing [his] 144 supportive exhibits"; (2) despite "knowing the facts [sic] that the [AAA] has failed to confirm if they had delivered all [his] 144 exhibits to presiding arbitrator;" and (3) without confirming or validating the arbitrator had read his 144 supportive exhibits. Thus, in reality, the sole basis for appeal is Ali's contention the arbitrator failed to review his 144 exhibits before rejecting his Complaint. However, Ali provides no evidence supporting this contention. In fact, in his opening brief, Ali provides no citation to the appellate record whatsoever, which alone is ground for striking it with leave to file a new brief. (Cal. Rule of Court, rule 8.204(a)(1)(C) [an appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"]; id. at 8.204(e)(2).) However, more significant than this procedural deficiency is the undisputed record on appeal that establishes the opposite of Ali's claim - the arbitrator did read and consider his 144 supportive exhibits before denying his Complaint, a fact both AAA and the trial court thereafter confirmed at his request.
Thus, this is not simply a case in which the appellant asks us, contrary to established rules of appellate review, to weigh a particular fact in its favor. (See Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737 [" ' "The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived. [Citation.] It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings." [Citations.]' "].) Rather, this is a case in which the appellant asks us to make a particular factual finding (here, that the arbitrator's award was rendered without consideration of the Claimant's evidence) even though he offers no evidence to support it and the undisputed record proves otherwise. This is not, and has never been, the role of the appellate court. (Brookhouser v. State of California (1992) 10 Cal.App.4th 1665, 1678 ["That we might, as triers of fact, have decided the case differently would be wholly irrelevant to our appellate function"].) As such, we conclude Ali's appeal is indeed distinct in that it qualifies as one of the rare, "absolutely clear cases" in which we may readily conclude without further briefing or argument that it is frivolous. (Brar, supra, 115 Cal.App.4th at p. 1319.)
Accordingly, Old Republic's motion to dismiss must be granted. As the California Supreme Court has explained, " 'Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals.' " However, " '[a]n appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts.' " (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650 [italics added].) This, unfortunately, is an appeal that, we conclude, no reasonable attorney could have deemed meritorious, warranting dismissal despite the early juncture of the appellate process. Given the clear lack of any factual or legal basis for reversal, which is evident from no more than a cursory look at the opening brief, we conclude dismissal is indeed the best, if not only, means to avoid the expenditure of any more unnecessary time or resources by the involved parties.
One issue remains - whether this court should grant Old Republic's request that we impose monetary sanctions against Ali for filing a frivolous appeal. The following law is relevant.
"The appellate courts have in the past imposed sanctions on attorneys for the prosecution of frivolous appeals." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 646.) However, as for "the power to punish attorneys for prosecuting frivolous appeals[,] the punishment should be used most sparingly to deter only the most egregious conduct." (In re Marriage of Flaherty, supra, 31 Cal.3d at pp. 650-651.) Under Code of Civil Procedure section 128.5, "(a) A trial court may order a party, the party's attorney, or both to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. . . . [¶] (b) For purposes of this section: [¶] . . . (2) 'Frivolous' means totally and completely without merit or for the sole purpose of harassing an opposing party." (Code. Civ. Proc., § 128.5, subds. (a), (b)(2).) Further, in the appellate realm, California Rules of Court rule 8.276 provides in relevant part that "a Court of Appeal may impose sanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not reasonably material to the appeal's determination; [¶] (3) Filing a frivolous motion; or [¶] (4) Committing any other unreasonable violation of these rules." (Cal. Rules of Court, rule 8.276(a).)
Applying these principles to the facts at hand, we conclude monetary sanctions are not warranted in this case. Firstly, there is no evidence of subjective bad faith. In contrast to cases where sanctions have been imposed, it does not appear Ali had anything to gain from delay. Further, while we are doubtful a reasonable attorney would find any merit in the sole arguments raised on appeal in this case, as Ali himself points out, he is a non-lawyer who has represented himself throughout these proceedings. While this circumstance generally does not excuse a self-representing appellant's violation of established rules of law (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795 ["In propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the [applicable] rules"]), we conclude it does weigh against the imposition of monetary sanctions in this case.
Accordingly, while we agree with Old Republic that dismissal of this appeal is warranted, we decline to grant its request to punish Ali through imposition of monetary sanctions.
DISPOSITION
The appeal is dismissed. Respondent Old Republic may recover costs on appeal.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Pollak, J.