Opinion
B302450
04-15-2021
JAMALEDIIN EMTIYAZ, Plaintiff and Appellant, v. MARK NEZAM EMTIAZ et al., Defendants and Respondents.
Abir Cohen Treyzon Salo, Boris Treyzon and Cynthia Ann Goodman for Plaintiff and Appellant. Shapero & Shapero and Steven J. Shapero for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. SC121429) APPEAL from a judgment of the Superior Court of Los Angeles County, Marc D. Gross, Judge. Affirmed. Abir Cohen Treyzon Salo, Boris Treyzon and Cynthia Ann Goodman for Plaintiff and Appellant. Shapero & Shapero and Steven J. Shapero for Defendants and Respondents.
____________________
Plaintiff and appellant Jamalediin Emtiyaz (Jamal) appeals a judgment on a jury verdict in favor of defendants and respondents Mark Nezam Emtiaz (Mark), and Pacific World Trade, Inc., Pacific World Discovery, LLC, Pacific World Marine, LLC, Pacific World Properties, LLC, Pacific World Investments, LLC, and Pacific World Holdings, LLC (collectively the defendant companies).
We refer to the individual parties by their first names for the sake of clarity. (Scalzo v. Baker (2010) 185 Cal.App.4th 91, 94, fn. 1.)
Jamal, whose first language is Farsi, contends the trial court abused its discretion in denying his request for an interpreter at trial. Jamal also contends the trial court erred in permitting the use of his deposition transcript at trial.
As discussed below, we conclude Jamal's arguments lack merit and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Jamal and Mark are brothers. Jamal is an Iranian citizen who has resided in France for many years. Mark is a United States citizen and a California resident.
1. Pleadings.
Jamal filed this action in October 2013. The operative first amended complaint (FAC) alleged causes of action against Mark and the defendant companies for breach of oral contract, common counts for money lent and unjust enrichment, fraud and deceit, and breach of fiduciary duty. The FAC sought damages as well as injunctive relief and specific performance. The gravamen of the action is Jamal's claim that he transferred to Mark and/or to the defendant companies the sum of $11.3 million for investment in the United States, and that Mark failed to return the funds to Jamal or to account for his use of the money.
Mark and the other defendants answered the complaint, denied the allegations, and asserted several affirmative defenses, including Jamal's lack of standing to assert the claims alleged in the FAC.
2. The trial court grants Jamal's request for a "standby" interpreter.
Jamal was unable to secure a visa to attend the August 2019 trial. Over a defense objection, the trial court allowed Jamal to participate in the proceedings using videoconferencing technology that enabled him to see and hear the proceedings, and to be seen and heard in the courtroom.
During voir dire, Jamal's counsel requested an interpreter for Jamal, but a few moments later counsel modified his request to merely ask for an interpreter on "standby" in the event Jamal encountered any difficulty. Mark's attorney objected, stating that he took Jamal's deposition in Paris and he had no problem communicating with Jamal.
The court thereafter conducted a videoconference with Jamal, outside the presence of the jury, to assess Jamal's need for an interpreter. At the beginning of the colloquy, Jamal, speaking without an interpreter, explained: "The main point is that because I—unfortunately, I cannot attend the court because I couldn't get my visa after more than two and a half years of trying to get it, and because I cannot attend and English is not my first language, I prefer to have an interpreter. I prefer to have it because I think it's better. This is a very, very important case for me, and I want to be sure that all the time, I take everything as it is."
The court asked: "Do you feel that there's a chance that some of the words that come up, you're not familiar with?"
Jamal responded: "I think so, your honor. Because it's court and maybe sometimes I cannot understand exactly what is the meaning of the word and because of that, it would be easier to accept that I have an interpreter to be sure that I never confuse anything."
The court stated: "You gave a deposition in this case without an interpreter, correct?" Jamal responded in the affirmative.
The court then stated: "And I'm told that you also gave testimony in a trial in Singapore in English without an interpreter; is that correct?" Jamal replied, "It's correct, but in Singapore, I was there for all four trials, more than one month for all my trials against my other brother. I was there. Because I was there personally, I didn't feel that I needed someone to interpret, but many times it happened there in my testimony that I asked the lawyers to explain the question and—but better that I was there. But now because I cannot attend, you know, I'm really scared that sometimes I cannot understand very well and maybe I appreciated to accept that I have an interpreter to be sure everything is all right."
The court asked: "Do you normally do business in English?" Jamal replied: "I do my business in English." The court then inquired: "And you can read and write English?" Jamal answered: "Of course. All the time I communicate in English. My e-mail, my contract, and everything, but—but, you know, your honor, I really am scared that I confuse during the trial. I really confused because it's teleconference, you know, and I feel better if you accept my request."
Defense counsel then questioned Jamal. Jamal stated that he had testified over a period of four or five days at the three trials in Singapore, without using an interpreter. Defense counsel then asked Jamal whether he had any difficulty understanding the questions at his deposition. Jamal stated: "[M]any times I ask you to repeat your question. Many times I ask you to explain to me."
The trial court then asked Jamal whether he had requested an interpreter due to his inability to attend the instant trial in person. Jamal responded as follows: "No, your honor. If I was there, you know, I feel better definitely and maybe I don't need to have an interpreter, but because I cannot attend myself, and this is an important trial, I want to be sure in all aspects that I can testify everything in the right direction. That is the main point."
Jamal added that he had lived outside Iran since 2002, and had resided in France since 2005. In France, in his "everyday life," the language he uses is "English, and sometimes French." Jamal also confirmed that he conducts his business in English, and reiterated, "Yes. Yes. My business communication has been in English."
Based on its assessment of Jamal's proficiency in English, the court concluded: "My feeling is that for most questions, he does not need an interpreter as you have conceded. I'm inclined to let you have one here on standby. And on a particular question, if he says he would like to have the interpreter and I feel it's legitimate, I'll allow it. But I don't want you to have him use the interpreter [for] every question because I don't think he needs it."
Jamal's counsel then stated that it was "certainly not [his] intention to use the interpreter with every question," but only "if it's obvious to the court that he's not understanding." The trial court stated: "If I feel that he's . . . struggling and having trouble, I'll say something myself." Jamal's counsel agreed, stating: "Perfect. That's it."
3. Trial and verdict.
In opening statement, the defense contended that the $11.3 million that had been transferred to Mark was not Jamal's money and therefore "he's not the one entitled to anything even if they are right, which they are not."
Jamal's testimony established that the $11.3 million that was transferred to Mark came from AKN Dubai and AKN Singapore, entities in which Jamal was only a minority shareholder. Jamal contended, however, that he and those entities were one and the same.
The jury was presented with a general verdict form with special interrogatories. The first special interrogatory asked whether Jamal had standing to sue in this action. The jury answered this special interrogatory "No" and therefore did not proceed to the remaining issues on the verdict form.
The trial court entered judgment on the verdict. Jamal filed a timely notice of appeal from the judgment.
CONTENTIONS
Jamal contends: (1) the trial court abused its discretion in denying his request to use an interpreter; and (2) the trial court erred in permitting the use of his deposition transcript at trial.
Jamal does not challenge the sufficiency of the evidence to support the jury's determination that he lacked standing to sue.
DISCUSSION
1. There is no merit to Jamal's contention that the trial court abused its discretion in denying his request for an interpreter at trial.
a. Governing principles and standard of review.
Evidence Code section 752, subdivision (a), provides in relevant part: "When a witness is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court, and jury, an interpreter whom the witness can understand and who can understand the witness shall be sworn to interpret for the witness." We review the trial court's decision on whether to appoint an interpreter pursuant to the deferential abuse of discretion standard. (See, e.g., People v. Augustin (2003) 112 Cal.App.4th 444, 451 [upholding trial court's determination that witness could sufficiently communicate her testimony without an interpreter].)
All undesignated statutory references are to the Evidence Code.
Section 752 further provides at subdivision (b)(2) that "[i]n all civil actions, the compensation for an interpreter under this section shall, in the first instance, be apportioned and charged to the several parties in a proportion as the court may determine and may thereafter be taxed and allowed in a like manner as other costs." Therefore, Jamal's argument that he sought to testify through an interpreter "at his own expense" is not germane to our analysis.
b. The trial court acted within its discretion in allowing for an interpreter on a standby basis.
Although Jamal frames his contention as the denial of his request to use an interpreter at trial, that is inaccurate. As set forth above, the trial court in fact granted the request by Jamal's counsel for a "standby" interpreter, and it ruled that "on a particular question, if he says he would like to have the interpreter and I feel it's legitimate, I'll allow it." Jamal's counsel agreed with the trial court's resolution of the issue, stating, "Perfect. That's it."
The trial court's decision to allow for a standby interpreter finds ample support in the record. In order to assess Jamal's proficiency in English, the trial court engaged him in a colloquy and was satisfied that "for most questions, he does not need an interpreter as you have conceded." Not only did the quality of the colloquy reveal Jamal's proficiency in English, but the court also had before it Jamal's acknowledgement that he conducts his business in English, he can write and read English, he communicates in English via email, his contracts are in English, and although he lives in France, he speaks English in his everyday life. During his trials in Singapore he testified for four or five days in English without an interpreter. In addition, it appeared from Jamal's responses to the court's questions that much of his desire for an interpreter stemmed from his inability to personally attend the trial ("If I was there, you know, I feel better definitely and maybe I don't need to have an interpreter"). In view of Jamal's showing in the court below, the trial court acted within the bounds of discretion in allowing him an interpreter on a standby basis only.
Jamal contends the trial court should not have considered the Singapore litigation in denying his request for an interpreter because what occurred in another trial, in another jurisdiction, should have had no bearing on the trial court's ruling herein. Leaving aside that the trial court granted Jamal's request for a standby interpreter, the trial court properly considered Jamal's ability to participate in other litigation without an interpreter in ruling on Jamal's request for an interpreter in the instant matter. (See, e.g., People v. Brown (1980) 110 Cal.App.3d 24, 35 [court's review of preliminary hearing transcript placed it in a position to determine whether interpreter was necessary].)
c. The trial court did not abuse its discretion in the instances when Jamal sought the involvement of the interpreter.
The remaining issue is whether the trial court abused its discretion in denying Jamal's specific requests for the involvement of a standby interpreter.
(1) Jamal's requests during trial for the standby interpreter.
Although in his appellate briefs Jamal now contends numerous portions of his testimony were unclear or incomprehensible, he cites only three instances during the eight-day trial in which his counsel sought to involve the standby interpreter. We set forth the proceedings in relevant part as follows:
(a) At one point during Jamal's direct examination, after defense counsel stated he didn't "catch" Jamal's response, Jamal's attorney stated: "Your honor, may I suggest this is a decent time to get an interpreter involved, and maybe that will solve part of the problem." The trial court responded: "He already told us about this in several questions and answers. I don't think it's an interpreter issue." (Italics added.)
(b) A little while later, defense counsel stated he didn't understand a response by Jamal. Defense counsel indicated: "I understood the words, but I couldn't follow it."
The trial court stated: "Why don't we pick up tomorrow with the same question and answer. Let him answer fresh. I didn't really understand the answer. Maybe tomorrow, you'll have a better hook up, hopefully. This one is not very good."
Jamal's attorney stated: "I think we're having difficulty with people understanding what the client is saying. It's not even his comprehension."
The trial court observed: "I think it is the connection, the poor sound quality more than anything else." (Italics added.)
Jamal's attorney attributed the difficulty to Jamal's accent and stated "if we use an interpreter, we do away with that problem. We're spending so much time asking him to repeat himself."
Defense counsel stated: "It's not an interpretation issue." The trial court agreed, stating: "It's just hard to understand what he's saying due to the sound quality and his accent. I don't think he's having trouble understanding your question." Jamal's attorney concurred: "I agree with that. It's not comprehension. It's having the reporter understand it."
Defense counsel then stated: "I think the problem is that the witness understands perfectly and won't answer the question and wants to give speeches all the time."
The trial court agreed: "I think that's part of it also. I don't know how many times I told him to answer the question and not go beyond it." The court concluded: "Maybe we can improve the audio between now and tomorrow. It may be his connection over there." The proceedings were adjourned until the following day.
(c) The following morning, before defense counsel commenced his examination of Jamal, his attorney reiterated his request for an interpreter, stating: "Your honor, as we have mentioned consistently, we have asked for the witness to testify through the interpreter. As this point, we were unable to source the interpreter for today. We informed [opposing counsel] that there's one available that could come in from San Diego." Jamal's attorney then expressly objected to Jamal's testifying without an interpreter.
Thus, the record reflects that although the trial court had granted Jamal's request for an interpreter as needed, Jamal did not actually have an interpreter standing by.
The trial court overruled the objection, stating: "The reason you want the interpreter was because . . . we're having trouble hearing some of his answers, and the reason we're having trouble with his answers [is] twofold . . . . One, the sound quality on this video is less than perfect. It tends to cut off at certain points. Two, he has a heavy accent, which makes it doubly tough when you're dealing with the sound issue. [¶] I told you before the trial that we would allow this video procedure, which is very novel and unusual, on the condition that we had good quality video. The other option was to go by his deposition, which you didn't want to do.[] So we're doing this as an accommodation to the plaintiff [Jamal]. It was over defendants' objection that we do it. [¶] I sympathize with your situation, but I think if we . . . did not have the sound quality issue, we wouldn't be talking about an interpreter."
Code of Civil Procedure section 2025.620 authorizes the use at trial of the deposition of an unavailable witness.
(2) The trial court did not abuse its discretion.
Having examined the above circumstances, we find no abuse of discretion. As Jamal's attorney conceded below, the communication problem did not arise out of Jamal's lack of proficiency in the English language. The trial court indicated it did not believe Jamal was having trouble understanding questions. Jamal's attorney concurred, stating: "I agree with that. It's not [his] comprehension."
Instead, the communication problem was primarily the result of the sound quality of Jamal's video appearance—to which the trial court had agreed to accommodate Jamal. Further, apart from technical issues with the audio connection, there was also an issue with Jamal's accent, which required him to repeat some of his responses. Although Jamal sought to bring in the interpreter to resolve the communication problem, the problem did not arise out of Jamal's inability to comprehend counsel's questions or his inability to express himself in English. Under these circumstances, the trial court's denial of Jamal's requests to involve the standby interpreter was not an abuse of discretion. (See, e.g., People v. Augustin, supra, 112 Cal.App.4th at p. 451 [court did not abuse its discretion in refusing to appoint an interpreter as a potential solution to a communication problem that was not an inability to comprehend or speak English].)
Moreover, even assuming the trial court abused its discretion in this regard—a conclusion that we have not reached—Jamal has not met his burden to show he was prejudiced by the trial court's refusal of his requests to bring in the standby interpreter. As noted, the verdict reflects that the dispositive issue at trial was Jamal's lack of standing to sue. However, Jamal has not established that any of the discrete instances in which he requested an interpreter pertained to his testimony concerning his standing to bring this action.
Accordingly, Jamal has failed to meet his burden to show the trial court committed a prejudicial abuse of discretion by denying his requests at trial to bring in the standby interpreter.
3. There is no merit to Jamal's contention regarding the use of his deposition transcript at trial.
Jamal's final contention is that the trial court committed reversible error when it permitted the use of his deposition transcript at trial because he was self-represented at his deposition, without an interpreter, and he was not advised that his deposition testimony could be used at trial, that he should ask questions if he didn't understand a question, or that he had a right to correct the deposition transcript.
In support of his claim of evidentiary error, Jamal relies solely on a practice guide that discusses the usual admonitions given before a deposition. However, Jamal provides no legal authority for his assertion that because he was not duly admonished prior to his deposition, the deposition could not be used at trial. " 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' [Citation.]" (In re A.C. (2017) 13 Cal.App.5th 661, 672.)
Jamal cites Weil & Brown et al., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 8:701, which states: "Explanation to witness: Deposing counsel usually begins the deposition by explaining to the witness the nature of the proceedings: i.e., that the witness is under oath; that the witness should not answer unless he or she fully understands the question; that the witness will have a chance to correct the transcript, but that counsel may comment to the jury upon such corrections at time of trial, etc. [¶] These explanations are important because they put the deponent 'on notice' of the significance of the proceedings and the consequences of his or her answers. It becomes very difficult for the deponent later to claim that he or she didn't understand' the questions, etc." The practice guide adds that if the deponent is represented by counsel, "you probably don't need a lot of introductory explanation. You can simply ask, 'Did your lawyer explain to you the nature of these proceedings and the consequences of the testimony you will be giving here today?' If the deponent answers 'Yes,' it is probably sufficient to overcome any later argument that he or she did not understand what was involved." (Id. at ¶ 8:701.1.)
Further, leaving aside Jamal's failure to show the use of his deposition transcript was erroneous, Jamal also fails to show that such error was prejudicial. Section 353 states that a "verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless . . . [t]he court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice." (Italics added.) As discussed, the dispositive issue at trial was Jamal's lack of standing to sue. Jamal has not shown that the admission or use of his deposition transcript had any bearing on the issue of his standing to bring the action. Thus, he has not demonstrated that any error, if it occurred, resulted in a miscarriage of justice.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
LAVIN, Acting P. J.
EGERTON, J.