Opinion
G051863
03-10-2017
BEHNAZ SHEILA SHAHBAZI, Plaintiff and Respondent, v. ZAMAN M. KABIR, Defendant and Appellant.
Zaman M. Kabir, in pro. per., for Defendant and Appellant. Law Office of Foroozandeh and Majid Foroozandeh for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2009-00123661) OPINION Appeal from a judgment of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Affirmed. Zaman M. Kabir, in pro. per., for Defendant and Appellant. Law Office of Foroozandeh and Majid Foroozandeh for Plaintiff and Respondent.
INTRODUCTION
Appellant Zaman Kabir has now made three trips to our court. His first appeal was dismissed because he did not have a final judgment. The second appeal - from a default and a default judgment in favor of respondent Behnaz Shahbazi - resulted in our upholding the default and returning the default judgment to the trial court to modify the amount. Kabir now appeals from this modified default judgment.
Shahbazi v. Kabir (May 31, 2012, G044652) [nonpub. opn.].
Kabir evidently believes that returning the judgment for modification nullified the default and put all the issues in the litigation back on the table. In this he is mistaken. We did not reverse the default itself, and we did not reverse the default judgment in its entirety. The second appeal established the law of the case for any subsequent activity in the trial court, and the only debatable issue likely to arise from the modified judgment was the amount of the new judgment itself. Kabir has not shown us any defect in this newly calculated amount. We therefore affirm the modified default judgment. He is not entitled to review of the other issues raised in this third appeal.
FACTS
The facts of this case were described in our opinion from the prior appeal. Briefly, Kabir wanted Shahbazi to lend money to his friends and customers Edwin and Suzette Gam. The loan was to be secured by two pieces of real property. Shahbazi refused to lend the money unless Kabir guaranteed the loan, as he did. When the Gams defaulted, Shahbazi turned to Kabir to honor his guarantee. He refused, and she sued.
Shahbazi v. Kabir (Dec. 10, 2013, G047361/G047773) [nonpub. opn.].
After Kabir failed to respond to Shahbazi's first amended complaint, she took his default. Kabir moved to set it aside, and the trial court denied the motion. The court then proceeded to the default prove-up, awarding Shahbazi a total of $241,677 in damages, costs, prejudgment interest, and attorney fees.
The prior appeal also dealt with a default and default judgment against Kabir's Investment Corp. Neither is at issue in this appeal. To the extent that Kabir bases his arguments on the case and the appeal involving Kabir's Investment Corp., he is precluded from doing so. He did not appeal as an individual in that case, and he cannot represent a corporation in a court of law. (See CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141,1145-1146.)
We affirmed the default against Kabir. We sent the default judgment back to the trial court for recalculation, because the judgment improperly included amounts for attorney fees and punitive damages. We did not, however, reverse the entire judgment.
Kabir served two document production subpoenas after the case was returned to the trial court. One of the subpoenaed parties moved for a protective order. Kabir applied ex parte to compel the other party's compliance. The trial court granted the protective order and denied Kabir's application, because Kabir was in default and was not entitled to invoke court process.
The court entered an amended modified default judgment of $66,130 on November 17, 2014, consisting of a judgment of $47,130 (which included a credit of $2,700), prejudgment interest, and prejudgment costs. The court declined to award postjudgment interest and costs in the modified judgment itself on the grounds that Shahbazi had to file a memorandum of costs in order to obtain them. Kabir filed his notice of appeal from the amended modified default judgment of November 17 on May 1, 2015.
Shahbazi asserted that Kabir's appeals from the judgment and from the denial of his ex parte application for stay of execution are both untimely because they were not filed within 60 days. The 60-day rule applies when a document entitled "Notice of Entry" has been served. Otherwise the time to appeal is 180 days from entry. (Cal. Rules of Court, rule 8.104(a)(1).) Nothing in the record indicated that a notice of entry was served for either the modified default judgment or the denial of the ex parte application.
In December 2014, Kabir applied ex parte to stay the execution of the judgment and to reduce the undertaking he had deposited with the court for the prior appeal. The court denied the application.
DISCUSSION
I. Law of the Case
The law of the case doctrine deals with the effect of a prior appellate decision on subsequent proceedings. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 459, p. 515.) To become the law of the case, the prior appellate decision must (1) be made by a court of last resort (United Dredging Co. v. Industrial Acc. Com. (1930) 208 Cal. 705, 712); (2) be signed by a constitutional majority of the court (In re Christopher A. (1991) 226 Cal.App.3d 1154, 1161); and (3) include a holding on a legal issue necessary to the disposition of the case. (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 498.) "Upon a later appeal the appellate court will not inquire into the correctness of the principles of law laid down upon the former appeal, but will only consider the record to determine if said principles have been followed. Where a decision upon appeal has been rendered by a District Court of Appeal and the case is returned upon a reversal, and a second appeal comes to this court directly or intermediately, for reasons of policy and convenience, this court generally will not inquire into the merits of said first decision, but will regard it as the law of the case." (United Dredging Co. v. Industrial Acc. Com., supra, 208 Cal. at p. 712.)
The California Supreme Court denied Kabir's petition for review on March 12, 2014, making this court the court of last resort.
A large portion of Kabir's opening brief in this appeal simply rehashes issues from the prior appeal, issues that have already been decided. For example, he once again complains that Shahbazi failed to state a cause of action for breach of contract or for fraud in her first amended complaint. We held that she had stated causes of action. This holding is not open for further review. He also tries to relitigate his liability on the guarantee, but that issue was decided the first time around, when he defaulted and his motion to vacate the default was denied. "Because the default confesses those properly pleaded facts, a plaintiff has no responsibility to provide the court with sufficient evidence to prove them - they are treated as true for purposes of obtaining a default judgment." (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281.) Upholding the default against Kabir in the prior appeal removed the issue of his liability on the guarantee from further review.
II. Motion to Compel Document Production
Kabir filed an ex parte application to compel responses to a document production subpoena and opposed a motion for a protective order against another such subpoena before the entry of the modified judgment. The trial court denied his application and granted the motion for protective order, while observing that both the application and the motion were moot. Kabir cites these rulings as another trial court error.
Kabir ignores the fact that he was in default, and this default was never set aside. In fact, it was affirmed on appeal. Entry of default terminates the defendant's right to participate in the litigation. (Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479.) Kabir was not entitled to ask the court for a discovery order after entry of default. The court correctly denied his ex parte application. Kabir could, if he wanted, subpoena people and documents, but as the court would not enforce a subpoena issued after default, serving one would likely be a waste of everyone's time.
III. Ex Parte Application to Reduce Undertaking and to Stay Execution
On December 5, 2014, after the entry of the modified default judgment, Kabir filed an ex parte application to stay its execution and to reduce the amount of an undertaking he filed with the court in February 2013. Kabir claimed to have deposited $530,000 with the court. While there is a record of the posting of an appeal bond in 2013 in the register of actions, the amount is not reflected there.
In his opening brief, Kabir stated he deposited $530,000 with the court on February 25, 2014. There is no citation to the record, and the register of actions does not reflect any such deposit on or about that date.
The denial of Kabir's ex parte application postdates the entry of the modified amended default judgment in November 2014. The denial of the order was not included in Kabir's notice of appeal, filed in May 2015. (See Golightly v. Molina (2014) 229 Cal.App.4th 1501, 1520-1521 [notice of appeal from judgment did not encompass subsequent attorney fee ruling].) The notice of appeal defines our jurisdiction. (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504.) Kabir's notice of appeal referred only to the amended modified default judgment of November 17, 2014. We cannot review orders from which no notice of appeal was filed, even assuming the orders are appealable.
IV. Prejudgment Interest and Costs
Kabir argues that the modified default judgment should be reduced by the amount of prejudgment interest and prejudgment costs it included. Although the appellant's appendix includes Shahbazi's cost memorandum, it does not include the motion to tax costs. The only related document from the parties in the record is an unconformed copy of Kabir's reply to Shahbazi's opposition to defendant's renewed motion to strike or tax costs. The record also includes the trial court's ruling on the renewed motion to tax costs, issued on October 16, 2014, denying the motion.
We cannot review the denial of the motion, whatever it may have been. The record is incomplete. We do not have the original motion to tax costs, the opposition (if any), the reply (if any), or the ruling on the original motion. We also do not have the "renewed" motion. It is the appellant's duty to present our court with a complete record, and the failure to do so triggers the rule that the trial court's rulings are presumed to be correct. (See Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.)
In the ruling on the renewed motion, the court stated that it ruled on the original motion to tax costs on May 29, 2014. There is no document in the appellant's appendix bearing that date.
Apparently Shahbazi filed an opposition to the renewed motion, but it was filed late, and the court declined to consider it. The opposition is not in the record.
In ruling on the merits of the renewed motion, the trial court stated that it denied the original motion to tax costs because it was untimely filed. Zabir has presented us with no argument or authority to undermine this ruling.
As for prejudgment interest, entitlement to this interest is set by statute. It is awarded as a matter of law. (See Leff v. Gunter (1983) 33 Cal.3d 508, 519-520.) Statutory interest is properly awarded as part of a default judgment. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1209.) The interest rate is fixed by statute. (Civ. Code, § 3287.)
Prejudgment costs and prejudgment interest in the modified default judgment were also elements of the original default judgment, in the same amounts. Kabir raised no issue relating to the computation of interest or the cost award in the prior appeal, and we affirmed the default judgment except for the amounts awarded for attorney fees and punitive damages. This is yet another issue not open for additional review.
DISPOSITION
The modified default judgment is affirmed. Respondent shall recover her costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J.