Opinion
C081343
03-15-2017
LAL DEV, Plaintiff and Appellant, v. ASHWANI KUMAR et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S-PR-0007688)
Plaintiff Lal Dev petitioned to invalidate a power of attorney his younger brother and wife had obtained over his father. When the notary who had notarized the power of attorney failed to appear for a deposition, Dev named the notary as a party.
Later, the brother and wife moved to strike portions of Dev's petition. Approximately two weeks later the notary filed a joinder to that motion to strike and also requested that he be dismissed from the petition. The trial court granted the request, dismissing the petition against the notary with prejudice.
On appeal, Dev contends the trial court erred in dismissing the notary. He raises an array of procedural challenges to the notary's filing. He also requests sanctions. We find no error in dismissing the notary and no grounds for sanctions. We therefore affirm.
BACKGROUND
In pro se, Dev petitioned to invalidate a power of attorney his younger brother and his brother's wife had obtained over his father. Dev named the brother and wife as parties.
Dev noticed a deposition for the notary who had notarized the power of attorney. When the notary failed to appear for the deposition, Dev filed an amended petition naming the notary as a party.
On August 13, 2015, Dev filed a second amended petition. That petition alleged the notary was responsible for drafting, editing, notarizing, obtaining signatures of the witnesses, and "several other activities." Dev asked that the power of attorney be invalidated and the property transferred under it be returned to him.
On August 31, 2015, the brother and wife filed a motion to strike Dev's request to return the property. They challenged Dev's basis to seek return of the property and the court's jurisdiction over the properties, which are located in India. They set the hearing for September 29, 2015, at 8:30 a.m.
On September 17, 2015, the notary filed a document captioned "joinder in respondents['] . . . motion to strike portions of amended petition and to dismiss [the notary] from the petition." The notary argued he had no interest or power under the power of attorney, and thus, Dev had no cause of action or remedy against him.
A week before the hearing, the trial court, on its own motion, continued the hearing to the afternoon, from 8:30 a.m. to 1:30 p.m.
On September 28, 2015, Dev filed an opposition to the notary's joinder and request to be dismissed. Dev raised several procedural challenges, averring the notary failed to specify a hearing date, and the filing was untimely. He also argued the notary was a proper party because he had obtained the power of attorney by unlawful and fraudulent means.
The next day a hearing was held. A minute order for the September 29, 2015 hearing reflects that the motion to strike was granted without leave to amend, and the notary was dismissed. The remaining parties were ordered to mediate.
Dev then moved, unsuccessfully, to vacate the order dismissing the notary. On December 1, 2015, an order dismissing the notary was filed. The order provides the time of the hearing as 8:30 a.m., rather than 1:30 p.m. Dev appealed from both the order dismissing the notary and the order denying his motion to vacate that order. He did not file a hearing transcript or an agreed statement.
DISCUSSION
I
The Trial Court Did Not Err in Dismissing the Notary
On appeal, Dev contends the trial court erred in dismissing the notary. In support, he raises an array of procedural challenges to the notary's joinder to the motion to strike and request to be dismissed. However, we may directly resolve the matter by addressing the crux of the appeal: was the notary properly dismissed? We conclude he was, and accordingly Dev cannot show prejudice as to any claim of procedural error. (See Cal. Const., art. VI, § 13 ["No judgment shall be set aside, or new trial granted, in any cause, . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice"].) We will therefore affirm.
In his reply brief, Dev asks that the respondents' brief be dismissed as untimely. We will exercise our discretion to consider the brief. (See Cal. Rules of Court, rule 8.882.) --------
Here, Dev's probate petition is limited to determining the power of attorney's validity. In his petition, Dev does not allege the notary had any interest in the power of attorney. While Dev alleges the notary was responsible for drafting, editing, notarizing, obtaining signatures of the witnesses, and "several other activities," that does not give the notary an interest in the instant petition. The notary may be a witness—but he is not a party.
Nevertheless, in his opening brief, Dev argues dismissing the notary was prejudicial because the dismissal was based on a motion that gave him insufficient time to respond, and the trial court failed to provide a statement of specific grounds for granting the relief. Putting aside that these arguments fail to show the notary is a proper party, Dev has not provided a transcript of the September 29, 2015 hearing or an agreed statement. We, therefore, presume the trial court offered defendant accommodations for the filing and provided a statement of reasons for dismissing the notary. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 ["All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown"].)
In his reply brief, Dev offers additional arguments as to prejudice. Preliminarily, these arguments are waived for failure to raise them in the opening brief. (See People v. Baniqued (2000) 85 Cal.App.4th 13, 29 ["[A] point raised for the first time [in the reply brief] is deemed waived and will not be considered, unless good reason is shown for failure to present it before"].) And in any event, they have no merit.
Dev cites to Probate Code section 1000 and Code of Civil Procedure section 379 and asserts, "Certainly, under these provisions, [the notary] is a necessary party to this lawsuit . . . ." This is not so. Probate Code section 1000 "merely provides that the provisions of the Code of Civil Procedure apply when the Probate Code is silent as to a particular rule of procedure." (Schwartz v. Schwartz (2008) 167 Cal.App.4th 733, 742.) Code of Civil Procedure section 379 permits multiple parties to be joined in one action. Neither section makes the notary a proper party. Dev also asserts the notary committed forgery, and fraud. But as explained, this would merely make him a witness to this petition to determine the power of attorney's validity—not a party.
The trial court properly dismissed the notary from the petition.
II
Dev is Not Entitled to Sanctions
Dev also requests sanctions, arguing respondents' counsel committed fraud on the court and violated various rules of professional conduct by preparing an order for the September 29, 2015, hearing that stated the hearing time as 8:30 a.m., rather than 1:30 p.m. We reject this contention.
The erroneous time on the order was in all probability a clerical error resulting from the trial court moving the hearing time shortly before the hearing. Dev fails to persuade us otherwise. The request for sanctions is denied.
DISPOSITION
The judgment (order) is affirmed.
NICHOLSON, Acting P. J. We concur: HULL, J. MURRAY, J.