Opinion
D072149
10-25-2018
NOUREDDINE ELASALI, Plaintiff and Appellant, v. LADISLAO TORRES, Defendant and Respondent.
Noureddine Elasali, in pro. per., for Plaintiff and Appellant. Kinkle, Rodiger and Spriggs, Michael F. Moon and Leah A. Reeves for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00023266-CU-PA-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed. Noureddine Elasali, in pro. per., for Plaintiff and Appellant. Kinkle, Rodiger and Spriggs, Michael F. Moon and Leah A. Reeves for Defendant and Respondent.
INTRODUCTION
Noureddine Elasali appeals from a judgment of dismissal of his personal injury action following settlement contending the court erred in granting his former attorney's motion to be relieved as counsel and in "ignoring" an oral motion to disqualify the judge and a request for change of venue. He also asks this court to enforce his version of the settlement agreement. Elasali did not meet his burden to show reversible error on any issue. We cannot consider the judicial disqualification issue because the exclusive remedy for such a challenge is by way of petition for writ of mandate. We, therefore, affirm the judgment.
BACKGROUND
Elasali, through counsel, filed a personal injury complaint in July 2014 alleging he was injured when a truck negligently driven by Ladislao Torres collided with the bicycle Elasali was riding. In February 2015, the court set the matter for trial and ordered mediation.
The selected mediator submitted a form in early July 2015 stating mediation did not take place because counsel was not ready to mediate.
In June 2015, Elasali's counsel filed a noticed motion to be relieved as counsel. Elasali's counsel stated conflicts had arisen between Elasali and counsel constituting a break-down of the attorney-client relationship and making it unreasonably difficult to continue to represent Elasali. Counsel requested a continuance of the currently set dates to allow Elasali reasonable time to retain new counsel.
Elasali opposed the motion saying the motion was frivolous and there was no conflict. However, he also claimed his attorney withheld documents and deceived both Elasali and the court.
The court granted the motion relieving Elasali's counsel of representation on July 31, 2015. His former counsel served Elasali with notice of the ruling. Elasali, representing himself, petitioned this court for an extraordinary writ directing the court to vacate the order relieving his former counsel. We summarily denied the petition in September 2015.
Elasali failed to appear at several scheduled hearings. The court continued the trial and related dates several times. The court held a settlement conference in February 2016, which did not resolve the matter.
At a trial readiness conference on April 29, 2016, the court denied Elasali's request for a change of venue. Because Elasali failed to participate in preparation of a trial readiness conference report, the court continued the trial readiness conference and set an order to show cause hearing why the case should not be dismissed. The court vacated the scheduled May trial date.
The record is incomplete, but the parties' briefs both indicate a settlement agreement was reached at a hearing on May 13, 2016. The court put the matter on a dismissal calendar. The court served notice stating the matter would be dismissed by June 27, 2016, unless a party appeared ex parte and showed good cause as to why the case should not be dismissed.
The parties disagree about the terms of the settlement. The hearing was not reported and Elasali did not request a settled statement of the oral proceedings.
Elasali filed an ex parte application in July 2016 requesting help from the court regarding settlement. The court heard the matter and considered the papers submitted. The court denied the application and informed Elasali the case was settled. The court stated Elasali would receive two checks, one for $15,000 and one for $2,000.
Nearly six months later, in January 2017, Elasali again submitted an ex parte application contending Torres violated the terms of the settlement agreement. He contended Torres provided a falsified copy of the policy. Elasali also contended he incurred property damage for payment of car rental expenses and the purchase of a new car, which he claimed was $49,000. The court denied the application without prejudice for failure to provide proof of service. Elasali did not resubmit the application.
On February 16, 2017, the court dismissed the matter with prejudice, noting it had previously extended the dismissal date for the case to July 29, 2016. Elasali appealed the dismissal order, which is an appealable judgment. (Code Civ. Proc., §§ 904.1, subd. (a)(1), 581d [dismissal order signed by the court and filed in the action constitutes a judgment].)
DISCUSSION
I
Code of Civil Procedure section 284 provides an attorney may withdraw from a case with consent of the client or if approved by the court. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915].) Rule 3-700(C)(1)(d) of the California Rules of Professional Conduct allows for permissive withdrawal by an attorney if the client's conduct "renders it unreasonably difficult for the member to carry out the employment effectively."
On appeal, Elasali contends the court erred in granting the motion for relief because the motion was frivolous and his former attorney failed to take measures to prevent prejudice. He contends his former attorney failed to give due notice to allow him time for employment of other counsel and withdrawal would result in prejudice. However, Elasali does not develop these arguments. " 'We are not bound to develop appellants' arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
The record available to us shows the attorney gave Elasali more than 30-days' notice of the motion to be relieved as counsel and counsel sought a continuance of all dates to allow Elasali reasonable time to obtain new counsel. The court granted several continuances and the last date set for trial was more than nine months after Elasali's counsel withdrew. Additionally, Elasali's opposition to the motion demonstrated a breakdown in the attorney-client relationship supporting the withdrawal. We cannot conclude the court abused its discretion in granting the motion.
II
Without providing record citations, Elasali contends he made an oral motion on May 13, 2016, to disqualify the judge based on bias or prejudice and asked for a change of venue. The court minutes do not reflect such a motion. The court rejected documents submitted by Elasali on May 13, 2016, for failure to comply with pleading requirements under the California Rules of Court. Elasali submitted a notice of lodgment to this court with five handwritten documents, including two documents entitled "Notice of Motion to Disqualify Judge" and "Notice of Motion to Change Venue," both of which are purportedly dated May 12, 2016. Neither bears a file stamp, proof of service, or other indication of authenticity. Presuming these were the documents rejected by the court, they are not properly before us. Even if we were to consider the purported documents, they only gave notice of intended motions. Neither document provided factual or legal bases for disqualification or change of venue.
We also deny Elasali's request for judicial notice of three e-mails. There is no indication these documents were before the court below and Elasali failed to comply with Evidence Code section 459 and rule 8.252 of the California Rules of Court.
In any event, we cannot consider Elasali's challenge to any judicial disqualification determination the court made because Elasali did not timely submit a petition for writ of mandate, which is the exclusive means to challenge such a determination. (Code Civ. Proc., § 170.3, subd. (d); Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063, People v. Hull (1991) 1 Cal.4th 266, 276 [disqualification motion is not reviewable on subsequent appeal].)
Elasali contends he moved for change of venue under Code of Civil Procedure section 397 "on the ground that a fair and impartial trial cannot be had in the county ... ." The record reflects the court denied Elasali's motion to change venue on April 29, 2016, but there is no record of the substance of the motion.
Some courts have concluded a venue order is only reviewable by petition for writ of mandate as provided in Code of Civil Procedure section 400. (See Chango Coffee, Inc. v. Applied Underwriters, Inc. (2017) 11 Cal.App.5th 1247, 1249, fn. 2; K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 496, fn. 6.) However, another court suggests a venue order is not directly appealable but may be reviewable from a final judgment in the action. (Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 41-42.) We need not resolve this issue because Elasali has failed to meet his burden to establish prejudicial abuse of discretion even if the order is appealable.
Elasali 's opening brief purports to recount events that took place at various hearings to support his claims of judicial bias and his request for change of venue. However, he provided no record citations. The hearings were not reported and Elasali elected to proceed without a record of the oral proceedings. He did not obtain an agreed statement or a settled statement.
"[A] party challenging a judgment [or order] has the burden of showing reversible error by an adequate record.' [Citation.] ' "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 ... ." ' [Citation.] A proper record includes a reporter's transcript or a settled statement of any hearing leading to the order being challenged on appeal." (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574.) Although Elasali is representing himself, he is not exempt from the rules governing appeals. A self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants having attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Without an adequate record, we presume the court's order denying the motion for change of venue was correct.
III
In Elasali's conclusion to his opening brief, again without citation to the record or authority, he asks this court to order Torres's insurance company to comply with Elasali's version of the settlement agreement.
The appellant must "present argument and authority on each point made" (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B)) and cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) It is not our responsibility to search the appellate record for facts, or to conduct legal research in search of authority to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Any point raised without citation may, in this court's discretion, be deemed forfeited. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 287, citing Del Real, supra, at p. 768.) Given the lack of an adequate record on appeal or cogent legal argument, we deny the request.
DISPOSITION
The judgment is affirmed. Respondent may recover his costs on appeal.
MCCONNELL, P. J. WE CONCUR: BENKE, J. DATO, J.