Opinion
G053020
03-14-2017
RUHANGIZ RAIMOVA, Plaintiff and Appellant, v. WEST COAST TOWING SERVICES, INC., et al., Defendants and Respondents.
Ruhangiz Raimova, in pro. per. for Plaintiff and Appellant. Borchard & Callahan, Thomas J. Borchard, Austin T. Borchard and Sabrina C. Narain, for Defendants and Respondents, West Coast Towing Services, Inc., and Farahnaz Gorjiyan.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2015-00797946) OPINION Appeal from orders of the Superior Court of Orange County, Walter P. Schwarm, Judge. Affirmed. Ruhangiz Raimova, in pro. per. for Plaintiff and Appellant. Borchard & Callahan, Thomas J. Borchard, Austin T. Borchard and Sabrina C. Narain, for Defendants and Respondents, West Coast Towing Services, Inc., and Farahnaz Gorjiyan.
* * *
Plaintiff Ruhangiz Raimova appeals from several orders denying his requests for a preliminary injunction, applications for a writ of possession, and a request to disqualify the trial judge under Code of Civil Procedure section 170.6. The court did not err in denying the requests for a preliminary injunction. We affirm the portions of the orders addressing the preliminary injunction. The portions of the court's orders denying plaintiff's applications for a writ of possession and the peremptory challenge of the judge are not appealable. Accordingly, we dismiss plaintiff's purported appeal on these issues.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTS
Plaintiff initiated this action on July 13, 2015 by filing a document entitled, "NOTICE OF MOTION AND MOTION & COMPLAINT FOR A Preliminary Injunction Upon Director of DMV & Writ of Possession of 1998 TOYOTA CAMRY PLATE #4AOJ433, TO Plaintiff ASAP, Attorney FEES, COSTS DAMAGES. [sic] POINTS & AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF RUHANGIZ RAIMOVA." Plaintiff filed the case as a limited civil action naming West Coast Towing Services, Inc. (West Coast), Farahnaz Gorjiyan, and Clear Choice Lien Services, Inc. (Clear Choice), as defendants. He sought damages of $10,000 arising from the towing and subsequent sale of his vehicle. Though not named as a defendant, plaintiff requested a preliminary injunction against the Department of Motor Vehicles (DMV). The complaint, styled more as a memorandum of points and authorities, does not allege any decipherable cause of action.
The clerk filed this document twice — once interlineating the words "MOTION AND MOTION" and the second time interlineating the word "COMPLAINT."
Plaintiff refers to Gorjiyan as Gorjiyana. We will follow the spelling utilized by Gorjiyan's counsel.
Plaintiff's Toyota Camry was stolen on March 27, 2015, and he reported the theft to the Orange County Sheriff's Department (OCSD). Plaintiff never received any further information about the vehicle until some unknown event occurred on June 24, 2015. Plaintiff alleges on that day, he and/or his family contacted the OCSD investigator "to inform the investigator about new information on the stolen car" and the investigator told him or them for the first time the car had been recovered on May 10, 2015, and sent to West Coast. Plaintiff and/or his family members called West Coast, and Mehdi Kiani of West Coast stated the car had been sold the previous day. Plaintiff alleges that pursuant to the Vehicle Code and Civil Code, the owner of a stolen car has 72 hours to pick up and claim the car without paying any fees. He had no knowledge the car was recovered until June 24, 2015, or he would have picked up and claimed the car.
The pleading attaches a letter dated June 25, 2015, wherein plaintiff contends he went to West Coast and showed them the title and registration for the car and was told he could recover the car for $1,800. The record is silent on the point, but we assume plaintiff refused to pay the $1,800. There is no explanation as to how it would be possible for plaintiff to purchase his car if it had already been sold. The pleading also attaches a document entitled "Certificate of Mailing Form 3877 Facsimil [sic]" with a May 20, 2015 postage cancellation. The document is not authenticated anywhere within the pleading, but on its face, it appears to be a proof of mailing from Clear Choice showing on that day, Clear Choice mailed some kind of item to plaintiff at 40 Woodswallow, Laguna Beach, California, with no zip code listed. The document has the following handwritten notation: "Rec'd 6-24-2015 @ 5:51 PM @ West Coast Towing Services Inc. Irvine 12 McLaren."
On July 13, 2015, the court considered plaintiff's initial filing of an ex parte application for preliminary injunction and a writ of possession. It denied both applications on procedural grounds, as the papers were not in the correct format. Over the course of the case, which was still ongoing, plaintiff filed numerous similarly-styled pleadings requesting identical relief. The record is a morass of repetitive pleadings that are difficult, if not impossible, to reconcile. We will outline the trial court's minute orders in an effort to frame potential issues on appeal.
On August 6, 2015, plaintiff and counsel for West Coast appeared for hearings on a motion for preliminary injunction and request for a writ of possession. The court continued the hearings to August 20, 2015, to allow plaintiff to give notice to the DMV. In the interim, plaintiff filed an amended complaint with an unlimited jurisdiction civil caption. On August 20, 2015, the court reclassified the case and ordered plaintiff to contact the clerk in the newly assigned department to reschedule all pending motions.
In the amended complaint, plaintiff adds as defendants the DMV and Jean Shiomoto in her official capacity as Director of the DMV. Plaintiff alleges causes of action for conversion and equitable possession, and a temporary restraining order, and preliminary and permanent injunctions. In June 2015, plaintiff alleges for the first time the vehicle contained tools, equipment, and other valuables worth more than $45,000. Plaintiff alleges in the preliminary injunction cause of action that he filed three courtesy stop notices at the DMV in June 2015, and if he had not obtained a temporary restraining order or preliminary injunction within 60 days, the stop would be removed. Plaintiff alleges the defendants may sell the vehicle at any time, and unless a restraining order is granted, the DMV's routine transfer of title will be in violation of his rights. From these allegations, it appears plaintiff sought a preliminary injunction against the DMV, but it is difficult to discern whether plaintiff sought a preliminary injunction against any other defendant, even though West Coast, Gorjiyan, and Clear Choice are named as defendants beneath the cause of action's heading. Shiomoto is not listed as a defendant in the preliminary injunction cause of action.
West Coast and Gorjiyan filed an answer to the amended complaint in August 2015. Clear Choice also filed an answer in August 2015. Neither the DMV nor Shiomoto made an appearance.
They have not filed briefs on appeal.
On October 20, 2015, the parties appeared for the first time in an unlimited civil department. The court found moot a motion plaintiff had filed on August 25, 2015, but deemed it a request to re-set hearings on plaintiff's amended motion for preliminary injunction filed August 6, 2015, and plaintiff's applications for a writ of possession filed July 16, 2015. The court rescheduled both matters for November 10, 2015.
On July 16, 2015, plaintiff filed multiple similarly-styled documents. He filed five separate motions requesting a preliminary injunction and three separate documents requesting a writ of possession. On August 6, 2015, plaintiff filed another motion for preliminary injunction, a notice of application for writ of possession and ex parte application for writ of possession and temporary restraining order, and an amended ex parte application for temporary restraining order and order to show cause re preliminary injunction.
In opposition to plaintiff's requests for relief, West Coast and Gorjiyan submitted Gorjiyan's declaration stating West Coast provided notice and the appropriate paperwork to Clear Choice, who then provided lien notification to all parties legally entitled to notice. He declared the value of the vehicle required a hold time of 30 days. After the notification expired, West Coast was informed the vehicle had "cleared" and West Coast could proceed with the auction/sale of the vehicle, which was accomplished on June 23, 2015. The vehicle was sold for $700.
The parties first appeared before Judge Walter Schwarm on November 10, 2015. The court heard argument on plaintiff's requests and took the matter under submission, issuing its ruling on November 12, 2015. Although it is impossible to determine which version of the motions the court intended to rule on, they appear to be nearly identical, and through the dizzying array of filings, we have gleaned plaintiff's objective has not changed. On each occasion through some form of pleading, plaintiff sought an order restraining the DMV and Shiomoto from transferring title to the vehicle to a new owner and an order giving him immediate possession of the vehicle.
As to plaintiff's requests for a preliminary injunction, the court found plaintiff failed to meet his burden of establishing the probability of prevailing on the claim and failed to show the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. As to the application for a writ of possession, the court found plaintiff failed to comply with the statutory requirements of section 512.010 and failed to establish the probable validity of his claim. The court stated it would not consider plaintiff's other requests for failure to comply with California Rules of Court, rules 3.1200, 3.1201, 3.1202, 3.1203, 3.1204, 3.1205, 3.1206, and 3.1207.
California Rules of Court, rules 3.1200 et seq. govern ex parte applications. It is not entirely clear what plaintiff's "other requests" were. According to the minute order, plaintiff's filing on which the court declined to rule was entitled, "Notice of Motion and Ex Parte Motion for Writ of Possession, TRO & Plaintiff's Reply to Def's WCTS & Farahnaz Gorjiyan's Responce [sic] of 10/28/2015 and Ex Parte Writ of Mandamus/Possession and Application for Temporary Restraining Order (TRO) and Order to show cause re Preliminary Injunction and Writ of Possession, and all 7 Motions on 7/16/2015, 8/6/2015, 8/14/2015, 8/20/2015, 10/20/2015; Plaintiff's Opposition and Reply to Defs' 7/24/2015, 8/04/15, 8/25/15, 8/27/15, 8/26/15, 9/8/15, Writings and Letter of 8/6/2015; Declaration of Ruhangiz Raimova, Time is of the Essence."
On December 22, 2015, the parties appeared on several discovery motions not at issue in this appeal. On that day, plaintiff requested leave to file a declaration disqualifying Judge Schwarm pursuant to section 170.6. The court informed plaintiff the notice of case reassignment had been sent out to all parties on October 8, 2015. Plaintiff stated he never received the notice. The court denied the request for disqualification because it was untimely. It also ruled on a motion plaintiff had filed on December 1, 2015. The court denied the motion because it was unsupported by legal authority and it appeared to repeat requests for relief which the court had previously denied. The court noted plaintiff offered no additional discussion or evidence that would justify an alternate ruling and offered no authority to support an award of damages at that time. Rather, the request appeared to be a repetition of the ultimate relief sought in the complaint.
The superior court file indicates the court clerk sent notice to plaintiff at 40 Woodswallow, Laguna Beach, California, 92656, on October 8, 2015. This is plaintiff's address of record in the superior court and in this court.
This filing was entitled, "NOTICE OF MOTIONS AND OPPOSITION AND 8 MOTIONS IN PRAYER, TO DEF'S 12/22/15, FALSE, UNTRUE MONETARY SANCTION MOTION, & PLAINTIFF'S 6TH REPLY TO DEF'S WCTS & FARAHNAZ GORJIYAN'S RESPONCE [sic] of 10/28/2015, AND ALL 7 MOTIONS ON 7/16/2015, 8/6/2015, 8/14/2015, 8/20/2015, 10/20/2015, 11/10/2015; PLAINTIFF'S OPPOSITION AND REPLY TO DEFS' 7/24/2015, 8/04/15, 8/25/15, 8/27/15, 8/26/15, 9/8/15, 10/28/15, 11/03/15, 11/06/15, 11/7/15, 11/10/15, 11/12/15, 11/17/15, 11/20/15 WRITINGS & DEF'S LETTERS OF 8/6/2015 & 11/3/15 (NOT SENT OUT TILL 11/7/15); DECLARTION [sic] OF RUHANGIZ RAIMOVA, TIME IS OF THE ESSENCE."
On December 24, 2015, plaintiff filed a notice of appeal from the court's orders dated November 10 and 12, 2015, and December 22, 2015.
There is no ruling to appeal in the November 10, 2015 order; on that day, the court simply took the matter under submission after argument.
DISCUSSION
Plaintiff challenges the orders of the court denying multiple requests for a preliminary injunction, multiple applications for a writ of attachment, and a peremptory challenge to Judge Schwarm.
"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) "The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error." (Fundamental Investment Etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) To demonstrate error, an appellant must present meaningful legal analysis supported by citations to authority on the points made. (See Cal. Rules of Court, rule 8.928(a)(1)(A); see also Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [Appellant "fails to present any intelligible legal argument as to why the court's denial of the motion was reversible error. One cannot simply say the court erred, and leave it up to the appellate court to figure out why"].) These principles apply equally to appellants representing themselves in propria persona. (See Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639 [litigants representing themselves in propria persona are held to same standards as attorneys].)
The Court Did Not Err in Denying Plaintiff's Requests for a Preliminary Injunction
The court denied plaintiff's requests for a preliminary injunction, finding he failed to meet his burden of establishing the probability of prevailing on the claim and failed to show the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. As to plaintiff's December 1, 2015 motion, the court denied the motion because it was unsupported by legal authority and requested relief which the court previously denied. We note plaintiff has not cited a single legal authority in his appellate briefs. He has not persuaded us the trial court erred.
The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the action. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528 (Continental Baking Co.).) For an injunction to issue, the moving party must establish the likelihood of prevailing on the merits. (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442.) Evidence must be submitted to establish a probability of prevailing on the merits, and this is customarily done by affidavits or declarations, although a verified complaint and other evidence can be considered. (Continental Baking Co., at p. 527.)
"In deciding whether to issue a preliminary injunction, a court must weigh two 'interrelated' factors: (1) the likelihood that the moving party will ultimately prevail on the merits, and (2) the relative harm to the parties from the issuance or nonissuance of the injunction." (Butt v. State of California (1992) 4 Cal.4th 668, 677-678.) "The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction." (Id. at p. 678.) A trial court's decision to grant or deny a preliminary injunction is reviewed for an abuse of discretion. (Ibid.)
Here, plaintiff has not shown a probability of prevailing on his claim. "'"'Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.'"'" (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) Although plaintiff contends he never received notice the car had been recovered until it was too late to redeem it from West Coast, the proof of mailing from Clear Choice points to a different conclusion and appears to show that on May 20, 2015, it mailed notice to plaintiff's address on Woodswallow, the same address of record in this litigation. Further, Gorjiyan declared proper notice was given before the car was sold. Hence, the evidence is in dispute. Plaintiff's evidence was not strong enough to persuade the trial court he would prevail on the second requirement for conversion — that the act of possessing and selling the vehicle was wrongful. We will not reweigh the evidence or substitute our judgment for that of the trial court. Resolution of conflicts in the evidence and assessment of credibility of witnesses are matters within the exclusive province of the trier of fact. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 204.)
Plaintiff also purports to allege a cause of action for equitable possession. There is no such cause of action. --------
As to the balancing of harms, while plaintiff believes his car was valuable to him, and we have no doubt it was, plaintiff has not shown his Toyota Camry was somehow unique or had intrinsic value or that the harm plaintiff has suffered is not compensable in money damages, i.e., that the legal remedy of damages "would not afford adequate relief" (§ 526, subd. (a)(4)) or that "it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief." (Id. subd. (a)(5).) If plaintiff prevails at trial, money damages will suffice, so there was no irreparable harm by failing to enjoin any defendant from transferring title to the car.
As to preserving the status quo, plaintiff made no showing of the status quo when the court issued its ruling in November 2015. The record does not reflect the whereabouts of the car at that time, so there was no status quo to preserve.
The Orders Denying Plaintiff's Applications for a Writ of Possession and Plaintiff's Peremptory Challenge Are Not Appealable
Only those orders specified by statute are appealable. (§ 904.1, subd. (a).) An order denying an application for a writ of possession is not among those specified. The statute does not refer to writs of possession, although it does make appealable "an order discharging or refusing to discharge an attachment or granting a right to attach order." (Id., subd. (a)(5).) Even if this were deemed to apply equally to writs of possession, here there was no discharge or refusal to discharge a writ. Similarly, an order denying a peremptory challenge under section 170.6 is not among those specified in section 904.1, and the order is not appealable.
Plaintiff could have filed a petition for writ of mandate requesting this court to review the denial of his applications for a writ of possession and/or the denial of his peremptory challenge, but he did not. (See RCA Service Co. v. Superior Court (1982) 137 Cal.App.3d 1 [writ of possession]; see also People v. Superior Court (Tejeda) (2016) 1 Cal.App.5th 892 [peremptory challenge].) Although we have discretion to treat the appeal of the portions of the orders concerning these rulings as a writ petition, we decline to do so because there exist no unusual circumstances. (Olson v. Cory (1983) 35 Cal.3d 390, 401 [salient aspects of procedure in treating appeal as writ petition it is discretionary and should not be exercised except under unusual circumstances].)
DISPOSITION
The orders of November 12, 2015 and December 22, 2015 are affirmed to the extent they denied plaintiff's requests for a preliminary injunction. As to all other issues contained within the orders, the appeal is dismissed. West Coast and Gorjiyan shall recover their costs incurred on appeal.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.