Opinion
G053887
04-30-2018
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Orange County, Nathan R. Scott, Judge. Affirmed. Zaman M. Kabir, in pro. per., for Defendant and Appellant. Law Office of Foroozandeh and Majid Foroozandeh for Plaintiff and Respondent.
INTRODUCTION
This is appellant Zaman Kabir's fourth trip to the Court of Appeal in the same case. It is at least one trip too many. All the issues raised in this appeal have been adversely decided as to Kabir in at least one of two previous appeals. In deciding the last of these, we carefully explained why he could not repeatedly raise the same issues in serial appeals. This explanation fell on deaf ears. We now affirm the order denying Kabir's motion to vacate the default judgment entered against him in 2010.
Respondent Behnaz Shahbazi has moved for sanctions for a frivolous appeal, and we grant the motion. We impose sanctions payable to Shahbazi in the amount of $5,000 and payable to the Court of Appeal in the amount of $2,500.
FACTS
Shahbazi sued Kabir for breach of contract and fraud in May 2009 for failing to honor a loan guarantee. She filed a first amended complaint in March 2010. Kabir failed to respond to the first amended complaint, and Shahbazi took his default in May 2010. Kabir moved to set the default aside, claiming he had not been served with the first amended complaint. The motion was denied.
Shahbazi then proceeded to prove up her default damages. The result was a default judgment for $241,000. Kabir appealed from this judgment.
(Shahbazi v. Kabir (Dec. 10, 2013, G047361/G047773) [nonpub. opn.].) This was Kabir's second appeal. The first appeal was dismissed because he did not have a final judgment. (Shahbazi v. Kabir (May 31, 2012, G044652) [nonpub. opn.].)
In the meantime, Shahbazi also sued Kabir Investment Corporation over the same guarantee. She received a default judgment in that case as well, which was also appealed. While this appeal was pending, however, the trial court vacated the judgment against the corporation because Shahbazi had not complied with the notice required to obtain damages in excess of the amount pleaded in the complaint.
The two appeals, from the default judgments against Kabir and his corporation, were consolidated, and we issued our opinion on December 10, 2013. In this opinion, we held: (1) Shahbazi had stated a cause of action for breach of contract and for fraud; (2) Kabir had failed to show the trial court abused its discretion in denying his motion to set aside his default; (3) the trial court had jurisdiction to vacate the default judgment against the corporation while the appeal was pending; and (4) the default judgment against Kabir individually had to be recalculated to remove awards for attorney fees and punitive damages. We also dismissed the appeal of the corporation's default judgment because the trial court had vacated it before the opinion was issued.
Shahbazi could not recover punitive damages because she had failed to serve Kabir with the notice required by Code of Civil Procedure section 425.115 before taking Kabir's default. She had not stated a cause of action that entitled her to attorney fees.
We affirmed the entry of default against Kabir and sent the judgment itself back to the trial court to recalculate the award, because it had improperly included amounts for attorney fees and punitive damages. The court entered a modified default judgment of $66,130 on November 17, 2014, and Kabir appealed from the new award.
(Shahbazi v. Kabir (Mar. 10, 2017, G051863) [nonpub. opn.].)
In this appeal, Kabir tried to relitigate issues that were decided in the previous appeal. For example, he argued once again that Shahbazi had not stated a cause of action for breach of contract. Our opinion included an extended discussion of the doctrine of law of the case, explaining that once a legal issue has been decided on appeal, it is not open to further debate. We observed that, first, we held in the 2013 opinion that Shahbazi had stated causes of action for breach of contract and for fraud, so that issue was off the table in future appeals, and, second, Kabir could not relitigate his liability on the guarantee because that was settled when his default was taken. We also observed that, since the only defects in the original default judgment were the awards for attorney fees and punitive damages, the rest of the judgment was now immune from review. We issued the opinion in this appeal on March 10, 2017.
Kabir had raised for the first time the amounts awarded for prejudgment interest and prejudgment costs, which were unchanged from the original default judgment.
Kabir moved in the trial court under Code of Civil Procedure section 473 to vacate the modified default judgment on January 26, 2016. Among the grounds asserted were: (1) extrinsic fraud; (2) excess damages; (3) failure to state a cause of action; and (4) insufficient evidence of damages. The trial court denied this motion on March 17, 2016, observing that it had done exactly as we had ordered in the 2013 opinion. It had recalculated the amount of the judgment, omitting awards for attorney fees and punitive damages, and entered a modified judgment for that amount. Kabir then moved for reconsideration. The trial court denied this motion after the notice of appeal had been filed.
Kabir filed his notice of appeal from the order denying his motion to vacate the judgment on August 15, 2016. He filed his opening brief on April 7, 2017, and his reply brief on August 2, 2017.
DISCUSSION
The present appeal is so obviously lacking in merit that the main issue before us is whether to impose sanctions on Kabir for a frivolous appeal. Every issue raised in the motion to vacate the modified default judgment and in this appeal has been dealt with and decided in at least one of the two previous appeals. Although Kabir represented himself in the 2017 appeal and is representing himself in this one, the same rules that apply to attorneys apply to self-represented litigants (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543; Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210), and we could not have been clearer in sounding the death knell of these issues.
There is also a serious question regarding whether the order denying Kabir's motion is appealable. On the one hand, cases have held that "an appeal from an order denying a motion to vacate an appealable order or judgment [will not] be entertained when the purpose of the motion was to change the decision of the trial court upon the same facts. [Citations.] Stated differently, if the grounds upon which the party sought to have a judgment vacated existed before the entry of judgment and would have been available upon an appeal from the judgment, an appeal will not lie from an order denying the motion. [Citations.]" (Litvinuk v. Litvinuk (1945) 27 Cal.2d 38, 44; see Lamb v. Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1011-1012; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 197, p. 274.) There is authority, however, for regarding orders denying motions to vacate a judgment made under Code of Civil Procedure section 473 as appealable. (See Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 200, pp. 275-277.)
Kabir had the 2017 opinion for nearly a month before he filed his opening brief and for nearly five months before he filed his reply brief. He appears to have entirely ignored it.
I. Kabir's Liability
Kabir's opening brief devotes over 20 pages to explaining why he was not liable to Shahbazi on the loan guarantee. As we stated in the 2017 opinion, "[T]hat issue was decided the first time around, when he defaulted and his motion to vacate the default was denied. . . . Upholding the default against Kabir in the [2013] appeal removed the issue of his liability on the guarantee from further review." (Shahbazi v. Kabir, supra, G051863.)
II. Extrinsic Fraud
The basis of this claim is that Shahbazi lied about serving the first amended complaint on Kabir. This was also the basis of his motion to set aside the default in June 2010. This motion was denied, and the denial was one of the issues in the 2013 appeal. We stated, "Kabir failed to present the trial court with any evidence whatsoever to support setting aside the default. It was his burden to show 'mistake, inadvertence, surprise, or excusable neglect.' [Citations.] Kabir made no such showing. The court did not abuse its discretion in refusing to set aside the default." (Shahbazi v. Kabir, supra, G047361/G047773.) This issue was finally determined over four years ago.
Kabir undertook to provide a "detailed declaration" from his counsel as evidence to support this motion, but no such declaration materialized.
The docket contains a reference to Shahbazi's motion for leave to amend the complaint, filed on February 25, 2010, and set for hearing on March 25, 2010, when it was granted.
III. Failure to State a Cause of Action
Kabir argues that Shahbazi failed to state a cause of action in the first amended complaint, thereby rendering the judgment void. In the 2013 opinion, we held that she had stated a cause of action for breach of contract and for fraud. She had not stated a cause of action for breach of the covenant of good faith and fair dealing. With respect to breach of contract and fraud, we stated, "Both causes of action adequately state claims for relief." As to the breach of the covenant of good faith and fair dealing, the failure to state this claim, we held, "matters not, because Shahbazi's breach of contract cause of action allows her to recover the unpaid portion of the loan, plus costs and prejudgment interest." (Shahbazi v. Kabir, supra, G047361/G047773.)
Undeterred, Kabir raised the issue again in his next appeal. In the 2017 opinion, directly after the discussion regarding law of the case, we stated, "A large portion of Kabir's opening brief in this appeal simply rehashes issues from the [2013] 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." (Shahbazi v. Kabir, supra, G051863.)
In both opinions, we held that the allegations in Shahbazi's complaint adequately stated a cause of action for breach of contract and thus supported a default judgment for contract damages. Kabir's effort to raise this issue once again is frivolous.
IV. Excess Damages
In the 2013 opinion, we identified two improperly awarded categories of damages: attorney fees and punitive damages. We returned the default judgment to the trial court to correct it by deleting these categories and recalculating the amount. We did not void the entire judgment. The trial court followed our instruction, and Kabir appealed from the modified award. The issues identified in this appeal did not include excess damages.
Kabir has two arguments in this appeal regarding damages. First, he asserts that the amount of the initial judgment (over $200,000) was excessive. This was true. The judgment included amounts for attorney fees and punitive damages to which Shahbazi was not entitled. We fixed this problem in the 2013 opinion, by eliminating attorney fees and punitive damages from the judgment, and it is no longer an issue. Second, Kabir asserts that insufficient evidence supported the award of damages. This was an issue for the 2013 appeal, in which Kabir first challenged the default judgment. The sole objection Kabir had to the default judgment in that appeal, however, was that he did not participate in the prove-up hearing. Kabir made no argument regarding the evidence supporting the amount of damages, and the only correction we required the trial court to make in the default judgment was the elimination of attorney fees and punitive damages. He cannot raise insufficiency of the evidence to support the judgment now, especially as he has simply asserted that Shahbazi has "not only failed to present substantial evidence in support of her damages that she allegedly suffered but she failed to present any evidence." The citation to the record that accompanies this unadorned statement refers to the first amended complaint. There is no further argument and no citation to any supporting authority. An issue unsupported by argument or citation to authority is waived (see Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 600), so even if the argument were timely, it would fail.
He also asserts that Shahbazi's complaint failed to state an amount of compensatory damages. This is false. The first amended complaint clearly stated the amount of damages for breach of contract - $50,000.
V. The Case against Kabir Investment Corporation
As stated above, Shahbazi filed a separate action against Kabir Investment Corporation regarding the guarantee. We dealt with the appeals from both default judgments in the 2013 opinion. Kabir has, in this appeal, expressed for the first time a rather startling conclusion regarding the suit against the corporation.
Kabir now argues that the trial court's vacation of the default judgment against the corporation in the separate suit proves that the judgment against him individually is void. Of course, the vacation of the default judgment against the corporation proves no such thing. These were separate judgments in separate lawsuits against separate defendants.
Kabir misstates the record when he asserts, as he does several times, that we affirmed the trial court's vacation of the default judgment against the corporation. We dismissed the appeal from that judgment, because it had been vacated after the filing of the notice of appeal.
Moreover, as we explained in the 2013 opinion, the vacation of the default judgment against the corporation had nothing to do with the propriety of the default itself. The trial court vacated the judgment because Shahbazi had not properly requested punitive damages and lacked a basis for an award of attorney fees. The court did not, however, void the default. On the contrary, it directed Shahbazi to prepare a modified default judgment eliminating the objectionable categories.
In the 2013 opinion, we held that, while the trial court had jurisdiction to vacate a void judgment during an appeal, it did not have jurisdiction to enter a new judgment. As soon as appellate jurisdiction expired, however, the trial court would be free to enter a new judgment. --------
Unlike the default judgment against Kabir, the judgment against the corporation was for a lump sum, except for punitive damages. Thus, the trial court had to recalculate the amount of the award from scratch. Kabir's default judgment, by contrast, specified each category of damages. It was therefore easy to eliminate the improper awards for punitive damages and attorney fees, without having to redo the entire judgment. That is what we directed the trial court to do, and that is what it did.
VI. Defying the Court of Appeal
Perhaps the most astonishing feature of the present appeal is Kabir's argument that the trial court should have ignored our 2013 opinion and should have begun anew when it considered his motion to vacate the judgment. Kabir seems to have derived this idea from the fact that an appellate court reviews a default and a default judgment de novo. He apparently takes "de novo" to mean "start again from the beginning" and faults the trial court for adhering to our instructions in the 2013 opinion on remand, instead of considering the motion to vacate "de novo." We are not mistaken about this. Kabir states several times that "[t]he court erred when it deferred to prior Appeal Court's decision. It should have used de novo standard when reviewing the case." It is also his opinion that "since [Kabir's] motion to vacate was based on void judgment, trial court should have reviewed the case de novo and should not have deferred to the previous rulings of trial court and/or Court of Appeal in denying [Kabir's] motion to vacate . . . ."
A trial court is not free to disregard instructions from a higher court. "When an appellate court's reversal is accompanied by directions requiring specific proceedings on remand, those directions are binding on the trial court and must be followed. Any material variance from the directions is unauthorized and void. [Citations]. When, for example, 'a cause is remanded with directions to enter a particular judgment, it is the duty of the trial court to enter judgment in conformity with the order of the appellate court, and that order is decisive of the character of the judgment to which the appellant is entitled. The lower court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, nor retry the case, and if it should do so, the judgment rendered thereon would be void.' [Citation.]" (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982 [court ordered to enter default judgment in accordance with evidence presented at prove-up].) Moreover, after losing an appeal, a litigant may not try to reach the same goal by different means or bring up new and different points that could have been raised the first time around. "Litigants are not free to continually reinvent their position on legal issues that have been resolved against them by an appellate court. 'It would be absurd that a party who has chosen not to argue a point on a first appeal should stand better as regards the law of the case than one who had argued and lost.' [Citation.]" (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312.)
Although it is true that a void judgment can be challenged at any time, a judgment cannot be voided on any grounds. If an issue has already passed appellate review, both the doctrine of law of the case and the principles of res judicata dictate that, with rare exceptions, the issue is done. (See People v. Shuey (1975) 13 Cal.3d 835, 840-845; City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 490-491; People v. Cowan (1941) 44 Cal.App.2d 155, 157-158.) We explained law of the case to Kabir in the 2017 opinion, but to no avail.
VII. Ex Parte Application to Reduce Undertaking
Kabir's appeal from the modified judgment included a request to reduce the undertaking he allegedly filed with the court after the entry of the original judgment. In the 2017 opinion, we stated, "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 . . . ." (Shahbazi v. Kabir, supra, G051863.)
In this appeal, as in the last one, Kabir's notice of appeal referred only to the order of March 17, 2016, the order denying Kabir's motion to vacate the judgment. The rule has not changed; the notice of appeal defines our jurisdiction, and we cannot review orders from which no notice of appeal was filed. In addition, the order denying Kabir's ex parte application to reduce the undertaking was entered on December 8, 2014. The time to appeal from that order has long since expired. (Cal. Rules of Court, rule 8.104.)
VIII. Sanctions
A self-represented litigant is as liable for sanctions for a frivolous appeal as an attorney would be. (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193.) An appeal is frivolous if no reasonable attorney would regard it as meritorious. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649 (Flaherty).) As the court pointed out in Flaherty, a frivolous appeal "ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts." (Id. at p. 650.)
In this appeal, the lack of merit could not be more apparent. As we have observed several times above, Kabir has tried to resurrect issues that, in some instances, were finally decided in 2013. No reasonable attorney could possibly believe this appeal had a chance of success. Indeed, no reasonable person could believe he or she would get away with an argument that the trial court should have ignored our directions on remand. And after our explanation of the doctrine of law of the case in the 2017 opinion, it should have been plain that Kabir could not renew arguments that had been laid to rest in 2013. Kabir must reimburse both Shahbazi and this court for the time and resources expended in dealing with this unwarranted appeal.
DISPOSITION
The order denying appellant's motion to vacate the judgment is affirmed. Respondent is to recover her costs on appeal.
We find this appeal to be frivolous and assess sanctions against Zaman Kabir as follows: (1) Sanctions in the amount of $5,000, payable to respondent Shahbazi within 30 days of the issuance of the remittitur in this matter; (2) sanctions in the amount of $2,500, for the cost of processing this appeal (DeRose v. Heurlin (2002) 100 Cal.App.4th 158, 181-183), which sum shall be paid to the clerk of this court within 30 days of the issuance of the remittitur in this matter. This opinion constitutes a written statement of our reasons for imposing sanctions, as required by Flaherty, supra, 31 Cal.3d at page 654.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J.