Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. LC078350 Victor E. Chavez, Judge.
Reza Naghipour, in pro. per., for Cross-defendant and Appellant.
Tisdale & Nicholson and Michael D. Stein for Cross-plaintiffs and Respondents.
ZELON, J.
Reza Naghipour appeals the verdict in favor of Gina Hattenbach on two grounds: the trial court did not give a jury instruction that was not requested and it did not admit evidence that was not offered. We affirm the judgment and impose sanctions against Naghipour for bringing a frivolous appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Hattenbach represented Naghipour in two cases: a personal injury matter arising from an injury Naghipour had suffered and a matter in which he was suing for contracting work he had performed on a home. Naghipour engaged in a series of inappropriate acts and communications based on his belief that he and Hattenbach were having a romantic rather than a professional relationship. Hattenbach also discovered that Naghipour had, in her opinion, lied about the injury that was the basis of the personal injury suit. Hattenbach decided that she could no longer represent Naghipour. The court granted permission for Hattenbach to withdraw from the representation.
Naghipour sued Hattenbach for malpractice but dismissed his complaint with prejudice without recovering any payment. Hattenbach filed a cross-complaint seeking $15,000 for services performed in the personal injury matter as well as damages for emotional distress. After a jury trial, the jury returned a special verdict finding that Naghipour breached the contract and intentionally inflicted emotional distress, and awarded Hattenbach $21,000. Naghipour appeals.
DISCUSSION
I. Jury Instruction
Naghipour complains that the trial court failed to instruct the jury regarding the validity of the retainer agreement between Hattenbach and Naghipour with respect to Naghipour’s suit for his work as a contractor. Naghipour, however, has not demonstrated that he requested any such jury instruction that was refused by the trial court. A plaintiff may not claim error in the failure to give an instruction when he did not request that the instruction be given. (Willden v. Washington Nat. Ins. Co. (1976) 18 Cal.3d 631, 636; Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 552; Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1010.)
II. Evidence of Voice Mails
Naghipour asserts that the trial court failed to admit evidence of voice mails that Hattenbach left for him. This evidence was Exhibit 70, which Naghipour acknowledges was “the summary of the voice mails.” Although Naghipour also claims in his briefing that he tried to introduce “the actual voice mails that were left on his voice mail by [Hattenbach],” this assertion is not borne out by the record: The evidence offered was not a recording but was a summary or transcription Naghipour had prepared of voice mail messages. Hattenbach’s counsel objected, and the trial court sustained the objection on hearsay grounds. Although there are references in the record to the existence of a compact disc containing the actual recordings, there is no indication in the record that the recordings themselves were ever offered into evidence. It is “specious” to argue that the trial court erred in excluding evidence that was never offered. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1302.) Where there is no indication in the record that a party offered the allegedly excluded evidence, or that the evidence was in fact excluded, the party cannot complain on appeal that the trial court erred in this regard. (Id. at pp. 1302-1304; see also Evid. Code, § 354.)
At the time the evidence was offered, Naghipour described Exhibit 70 as a summary he had prepared of the voice mail messages. At the close of evidence, Naghipour’s trial counsel referred to Exhibit 70 as “all of the telephone messages, the last package,” and Hattenbach’s counsel clarified that the objection was made on “both hearsay and authenticity grounds. Those are his transcriptions of something else.”
III. Motion for Sanctions
Hattenbach requests sanctions in the amount of $4,000.00 because the appeal is frivolous. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1).) We advised the parties of our intention to consider the issue of sanctions at the time of oral argument by our order dated August 26, 2009. Having given Naghipour notice by issuing an order to show cause why sanctions should not be imposed, and having afforded him an opportunity to respond both in writing and at oral argument, we conclude that sanctions are proper for pursuing an appeal that is frivolous because it indisputably has no merit. (Bach v. County of Butte (1989) 215 Cal.App.3d 294, 312.) This opinion constitutes a written statement of our reasons for imposing sanctions. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654; see Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1434; Bach, at p. 313.)
The California Supreme Court extensively examined the question of frivolous appeals in In re Marriage of Flaherty, supra, 31 Cal.3d 637. “The California cases discussing frivolous appeals provide a starting point for the development of a definition of frivolous. Those cases apply standards that fall into two general categories: subjective and objective. [Citation.] The subjective standard looks to the motives of the appellant and his or her counsel.” (Id. at p. 649.) “The objective standard looks at the merits of the appeal from a reasonable person’s perspective. ‘The problem involved in determining whether the appeal is or is not frivolous is not whether [the attorney] acted in the honest belief he had grounds for appeal, but whether any reasonable person would agree that the point is totally and completely devoid of merit, and, therefore, frivolous.’ [Citations.]” (Ibid.)
The Supreme Court continued, “Both strands of this definition are relevant to the determination that an appeal is frivolous. An 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. Thus, 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.” (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.)
We conclude that appellant has filed a frivolous appeal within the meaning of Code of Civil Procedure section 907, California Rules of Court, rule 8.276(a)(1), and In re Marriage of Flaherty, supra, 31 Cal.3d 637. Hattenbach has asserted that Naghipour’s motive for the appeal was to continue a campaign of retribution for rejected amorous advances; this account is disputed by Naghipour in his opposition to the motion for sanctions. We need not draw conclusions about Naghipour’s subjective motive for filing the appeal, however, because under the objective standard for frivolousness Naghipour’s appeal indisputably has no merit. (In re Marriage of Flaherty, at p. 650.) Any reasonable attorney would agree that it is totally and completely meritless to complain that the trial court did not admit evidence that was never offered and did not give civil jury instructions that were never requested. Litigants may “have the right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal” (Ibid.), but these issues are not even arguably correct. It is fundamental that litigants must actually seek to introduce evidence before they may complain of its exclusion on appeal (Evid. Code, § 354), and that they must request jury instructions applicable to their theories of the case. (Willden v. Washington Nat. Ins. Co., supra, 18 Cal.3d at p. 636 [“‘In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion’”].) While we remain mindful of the difficulty that often arises in drawing a line between the merely meritless and the actually frivolous (In re Marriage of Flaherty, at p. 650), here we can easily say that “any reasonable person would agree that the point[s are] totally and completely devoid of merit, and, therefore, frivolous.” (Estate of Walters (1950) 99 Cal.App.2d 552, 558.)
DISPOSITION
The judgment is affirmed. Sanctions on appeal are awarded to Respondent against Appellant in the amount of $4,000.00. Costs on appeal are awarded to Respondent.
We concur: PERLUSS, P. J., JACKSON, J.