Opinion
D070045
03-03-2017
C. BRADLY HALLEN, Plaintiff, v. VAHID HAMZAVI et al., Defendants and Respondents; SAID HAMZAVI et al., Defendants and Appellants.
Rejali Law Firm and Omid Rejali for Defendants and Appellants. David A. Kay for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2015-00007896-CU-MC-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Lisa Schall, Judge. Affirmed; Sanctions awarded. Rejali Law Firm and Omid Rejali for Defendants and Appellants. David A. Kay for Defendants and Respondents.
I.
INTRODUCTION
This appeal arises from a judgment entered in an interpleader action filed by attorney C. Bradley Hallen to determine how $600,000 in proceeds recovered as a result of the settlement of a wrongful death action should be distributed among the four surviving siblings of the victim, Minarokh (Mina) Hamzavi.
After listening to testimony and reviewing the evidence presented, the trial court determined that the two younger siblings had developed much closer personal relationships with Mina, and therefore suffered greater injury as a result of her death, than the two older siblings, who were essentially estranged from her. The court awarded the estranged siblings nominal damages of $10,000 each, and divided the remainder of the settlement funds between the two other siblings.
On appeal, the two older siblings (appellants) seek to reverse the trial court's judgment, arguing that there is not sufficient evidence to support the trial court's findings. However, appellants have not provided this court with either a copy of the transcript of the trial or a settled statement, thus making it impossible for this court to review the sufficiency of the evidence that was presented to the trial court. Further, appellants make an additional argument in a single five-sentence paragraph, in which they appear to contend that the trial court did not have jurisdiction to distribute the funds at issue in this case. To the extent that we can discern appellant's jurisdictional argument, we conclude that it lacks any merit. We therefore affirm the judgment of the trial court.
Respondents have moved for sanctions against appellants on the ground that after receiving appellants' opening brief, respondents' attorney explained to appellants' attorney that an appeal based on the sufficiency of the evidence could not be undertaken without a sufficient record. Respondents have included evidence in the motion demonstrating that appellants continued to pursue the appeal despite having been notified of the inadequacy of the record. Respondents argue that this fact, together with comments made by appellants' attorney to respondents' attorney during a telephone conversation, suggest that the appeal is being pursued for the purpose of delay. We grant the motion for sanctions.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, Mina's four siblings, Vahid Hamzavi, Minoo Hamzavi, Said Hamzavi, and Mahdokht (Mimi) Hamzavi, retained Hallen to prosecute a wrongful death action against the driver who was responsible for Mina's death. The case went to trial, but the parties settled the matter while the jury was deliberating.
The siblings could not decide how to divide the $600,000 in proceeds that remained after attorney fees and costs had been deducted, so Hallen filed an interpleader action on March 9, 2015. Hallen deposited the funds with the trial court and was dismissed from the action.
A trial was held in November 2015. The trial court heard testimony from witnesses, received documents and photographs in evidence, and considered the written closing arguments of counsel. Prior to issuing a final statement of decision, the court also considered the objections of Said and Mimi's attorney to the court's tentative statement of decision.
The trial court found that Mina began the process of obtaining a green card to permit her to move to the United States from Iran in 1994. Vahid and Minoo were living in the United States at that time, and they continue to do so. Said had been living in Strasbourg, France, and Mimi had been living in Canada. During her time in the United States, Mina lived with both Vahid and Minoo for extended periods of time. In addition, the trial court noted that there was documentary and photographic evidence presented to the court to establish that Vahid and Minoo each had a "longstanding and close relationship with Mina." The trial court found that "Vahid was instrumental in assisting Mina in acquiring her legal documents, then orchestrating the wrongful death action and managing the funeral and related expenses." The trial court took note that Said "never even came to the trial and gave inconsistent stories why he chose not to attend."
The trial court further found that "only Vahid and Minoo cherished their relationship with Mina," and that it was because of "their love that she chose to live in America to be near them." In sum, the court determined, "There is overwhelming, clear and convincing evidence that only Vahid and Minoo fostered their relationship with Mina and that she both appreciated and reciprocated in kind."
The trial court ultimately awarded Said and Mimi $10,000, each, and divided the remaining $580,000 between Vahid and Minoo.
By amended judgment, the court ordered that the parties receive proportionate interest on their awards, as well.
Said and Mimi filed a joint motion for new trial, which was denied on February 26, 2016. They then filed a timely notice of appeal.
III.
DISCUSSION
A. This court is unable to review appellants' sufficiency of the evidence claim because they have failed to provide a sufficient record on appeal
Said and Mimi contend that the trial court erred in distributing the settlement proceedings among the siblings. Specifically, they argue that the awards they received are "inadequate because of the vast difference between what the siblings received." They contend that "Vahid and Minoo did not prove that their non-economic los[s]es were thirty (30) times greater than Said's and Mimi's." Thus, Said and Mimi complain that "the trial court's decision was not supported by sufficient evidence."
There is a significant problem with Said and Mimi's appeal. The record on appeal does not contain a transcript of the testimony presented at trial.
It is universally recognized that the appellant has the burden of showing error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Appellate courts "adopt all intendments and inferences to affirm the judgment or order unless the record expressly contradicts them." (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 (Nielsen); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141 [judgments are presumed correct, and an appellant has the burden on appeal of demonstrating the existence of error and presenting an adequate record by which a reviewing court can assess claims of error on appeal].)
Where an appeal is presented with no reporter's transcript, the trial court's findings of fact and conclusions of law are presumed to be supported by substantial evidence, "unless the judgment is not supported by the findings or reversible error appears on the face of the [available] record." (Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207; accord, Nielsen, supra, 178 Cal.App.4th at pp. 324-325; National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521.) "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record," we must "presume[ ] that the unreported trial testimony would demonstrate the absence of error." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) The failure to include a transcript of the trial at issue on appeal precludes review of the trial record by the reviewing court and is thus fatal to any claim that the evidence presented is insufficient to support the judgment.
Citing some of the same authorities on which we rely, respondents argue that appellants' sufficiency of the evidence argument is foreclosed by their failure to provide an adequate record on appeal. In reply, Said and Mina suggest that they are not fully foreclosed from raising an insufficiency of the evidence argument claim because the authorities cited by respondents "do not apply to the facts of this case." They further contend that they have met their burden of establishing the insufficiency of the evidence to support the trial court's findings "on the record before this court" (formatting omitted). We disagree.
First, the point of each authority cited by respondents is that an incomplete record—i.e., one that does not include the very evidence that is being challenged as having been insufficient—prevents an appellate court from undertaking the review necessary to address the contention raised by appellants. Those authorities are applicable here, and provide a basic tenet of appellate practice: an insufficient record precludes this court from doing its job, and in the face of an insufficient record, we presume that the judgment of the trial court is correct. Further, appellants simply could not possibly have met their burden to demonstrate the insufficiency of the evidence on the record that they have provided on appeal. This record does not include all of the evidence that was presented to the trial court. As a result, we have no way of assessing whether the trial court's findings are supported by substantial evidence. The fact that appellants have provided us with some evidence in the record related to their motion for new trial does not change this. We are simply unable to review the sufficiency of the evidence underlying the findings of the trial court in the absence of all of the evidence presented to the trial court. B. Appellants' argument that the trial court lacked jurisdiction to decide the matter is wholly without merit
Appellants make a five-sentence argument that the trial court erred in even undertaking a distribution of the settlement award. They argue that "[t]he settlement agreement ended the need for the parties to prove their damages" and that "the trial court lost jurisdiction once settlement [of the underlying wrongful death action] occurred." Appellants' analysis with respect to this argument is difficult to discern. Appellants appear to suggest that because the wrongful death action was settled, the trial court had no authority to determine how to distribute the settlement proceeds in the interpleader action and instead, that the settlement proceeds should have been passed to Mina's estate, to be distributed pursuant to the Probate Code. The siblings filed a wrongful death action seeking to recover damages for their personal loss of Mina as a sister. The settlement proceeds from that lawsuit accrue to them, as the plaintiffs, and not to Mina's estate. This interpleader matter was filed by the siblings' attorney, as a separate action from the underlying wrongful death lawsuit, after the siblings were unable to agree as to how the proceeds from the settlement of that action should be distributed. The trial court clearly had jurisdiction over this case. C. Respondents' motion for sanctions is granted
Respondents have filed a written motion for sanctions against appellants on the ground that after receiving and reviewing appellants' opening brief on appeal, respondents' attorney explained to appellants' attorney that the appeal appeared to be frivolous. Respondents' attorney suggested to appellants' attorney that the grounds for reversal raised in appellants' opening brief on appeal could not be properly raised without a sufficient record on appeal, and that the lack of a reporter's transcript rendered appellants' arguments unreviewable. Respondents' attorney also noted that the very brief "jurisdictional" argument had no basis in the law. Appellants oppose the motion.
Code of Civil Procedure section 907 provides: "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." California Rules of Court, rule 8.276(a) provides: "On motion of a party or its own motion, a Court of Appeal may impose sanctions . . . on a party or an attorney for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay."
"[A]n appeal may be found frivolous and sanctions imposed when (1) the appeal was prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment; or (2) the appeal indisputably has no merit, i.e., when any reasonable attorney would agree that the appeal is totally and completely without merit." (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 310 (Bach), citing In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty).) "In determining whether an appeal indisputably has no merit, California cases have applied both subjective and objective standards. The subjective standard looks to the motives of the appealing party and his or her attorney, while the objective standard looks at the merits of the appeal from a reasonable person's perspective. [Citation.] Whether the party or attorney acted in an honest belief there were grounds for appeal makes no difference if any reasonable person would agree the grounds for appeal were totally and completely devoid of merit." (Kleveland v. Siegal & Wolensky, LLP (2013) 215 Cal.App.4th 534, 556-557 (Kleveland).)
"The objective and subjective standards 'are often used together, with one providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay.' [Citation.] An unsuccessful appeal, however, ' "should not be penalized as frivolous if it presents a unique issue which is not indisputably without merit, or involves facts which are not amenable to easy analysis in terms of existing law, or makes a reasoned argument for the extension, modification, or reversal of existing law." ' " (Kleveland, supra, 215 Cal.App.4th at p. 557.)
"Flaherty cautions that 'any definition [of a frivolous appeal] must be read so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal. 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.' " (Bach, supra, 215 Cal.App.3d at p. 310, italics omitted.)
We are mindful of the limitations on imposing sanctions. However, we conclude that this appeal is frivolous. Despite having been notified of the inadequacies of the record on appeal and the "jurisdictional" argument, and having been given an opportunity to dismiss the appeal and/or attempt to address the inadequacies of the record, appellants' counsel failed to take the steps necessary to procure a complete record. Instead, appellants' counsel repeatedly insists that the record is adequate to permit this court to address the merits of appellants' appeal. It is not, and there is no reasonable argument that it is. Further, the "jurisdictional" argument set forth in the opening brief cannot reasonably be interpreted as raising an arguable claim; no reasonable attorney would have believed that it was arguably correct to contend that the trial court had no jurisdiction in the interpleader action. Beyond this, there is evidence in the record, supplied by the declaration submitted by respondents' attorney, that appellants' counsel maintained this appeal in order to delay the effect of the judgment.
Specifically, counsel for respondents has declared that he spoke by telephone with counsel for appellants after informing appellants' counsel that the issues raised in appellants' opening brief were problematic, given the lack of an adequate record on appeal and the lack of any reasonable argument with respect to the "jurisdictional" issue. According to respondents' counsel, during the discussion, appellants' counsel stated that respondents would be having to deal with the case " 'for a long time to come.' "
Given the state of the appellate record, we conclude that the appeal lacks merit under the Flaherty standard and that the imposition of sanctions on counsel for appellants is appropriate.
In addition to having the opportunity to address the issue of sanctions in writing, the attorneys for both parties were notified, prior to oral argument, that this court was considering granting respondents' motion for sanctions. The attorneys for the parties were provided an opportunity to address the propriety of ordering sanctions at oral argument.
In determining the appropriate amount of sanctions on appeal, we consider the amount of attorney fees incurred by plaintiff seeking to dismiss the unauthorized appeal; the amount of the judgment at issue on appeal; the degree of objective frivolousness and delay; and the need to discourage like conduct in the future. (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 830; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 33-34.)
According to the declaration filed by respondents' attorney in support of the motion for sanctions, at the time the motion for sanctions was filed, respondents had incurred attorney fees of $8,112.84, and costs of $120.84, for a total of $8,233.68. Just prior to oral argument in this case, respondents' attorney filed a supplemental declaration with this court, declaring that because of additional work required with respect to the appeal, as well as additional costs, the total amount of attorney fees and costs incurred by respondents with respect to this appeal is now $10,181.34. Appellants' counsel has not raised any objection to the reasonableness of this amount in the opposition to the motion for sanctions or during oral argument on the matter. We find this amount to be a reasonable sanction amount. (See Kleveland, supra, 215 Cal.App.4th at p. 558 [requested amount of $52,727.56 in attorney fees and costs related to appeal determined to be reasonable].) We therefore award appellants sanctions in the amount of $10,181.34.
Although respondents request the imposition of sanctions, they do not expressly request any particular amount as the sanction award. It seems readily apparent, however, that respondents' counsel provided information regarding the attorney fees and costs incurred by his clients with respect to this appeal in order to permit this court to fashion a sanction commensurate with the cost to respondents in having to proceed with this frivolous appeal.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
Respondents' motion for sanctions is granted as follows: Appellants' counsel is ordered to pay $10,181.34 to respondents as sanctions for maintaining a frivolous appeal. The sanctions are to be paid within 30 days of the date this court issues its remittitur.
The sanctions payment to respondents includes an award of costs on appeal; no additional award of costs is necessary.
Upon issuance of the remittitur, the clerk is directed to forward a copy of this opinion to the State Bar of California. (Bus. & Prof. Code, § 6086.7, subd. (a)(3).) This opinion shall serve as notice to counsel that the matter of the sanctions imposed has been referred to the State Bar. (Bus. & Prof. Code, § 6086.7, subd. (b).)
AARON, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.