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Sylvester v. Mansouri

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jun 27, 2012
No. G046148 (Cal. Ct. App. Jun. 27, 2012)

Opinion

G046148

06-27-2012

JAMES H. SYLVESTER, Plaintiff and Appellant, v. PEDRAM MANSOURI, Defendant and Respondent.

James H. Sylvester in pro. per., for Plaintiff and Appellant. No appearance for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2011-00486387)


OPINION

Appeal from a judgment of the Superior Court of Orange County, Andrew P. Banks, Judge. Affirmed.

James H. Sylvester in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Plaintiff James H. Sylvester brought this lawsuit against his ex-wife's divorce attorney, Pedram Mansouri. Among other things, he claimed that Mansouri directed an attempt to assassinate him and also caused him to be assaulted. Mansouri did not appear in the trial court, and Sylvester tried to get a default judgment. Concluding that the complaint failed to state a claim upon which relief could be granted, the trial court entered judgment for Mansouri. We find no error and affirm.

I


FACTS

On June 23, 2011, Sylvester filed the instant action against Mansouri, an attorney who represented his ex-wife in their divorce. He used the standard form complaint for personal injury, but failed to allege any facts on the form, instead referring to various "attachments" exceeding 200 pages. We briefly summarize each of his five cause of action.

The first cause of action alleged that in May 2009, when Sylvester was staying at an extended stay hotel in Yorba Linda, he returned home from work to find there had been a murder in a room across from his. A neighbor reported someone had broken into the room, and arguing and gunshots were heard. The victim, according to the neighbor, "looked a lot like [Sylvester]." Because Sylvester did not feel safe, he moved out. He alleged that he did not discuss these events with anyone, ever, so nobody else could have possibly learned of them. Yet on July 2, he claims Mansouri told him during a meeting that he would be dead in a day "like my neighbor" if Mansouri "feels like it." (Sylvester's evidence of this statement is his personal notes from the alleged meeting.) Sylvester believed Mansouri was responsible for the murder of Sylvester's hotel neighbor and claimed Mansouri hired someone to conduct the murder. Sylvester claimed he was damaged by moving to another hotel for two weeks at the cost of $2,000. The first cause of action also demanded that Mansouri "come forward that [Mansouri] hired a professional killer to take my life on May 22, 2009." He stated if Mansouri did not come forward, Sylvester would seek $100,000 in punitive damages in addition to the compensatory damages of $2,000.

The second cause of action alleged that on May 23, 2009, Sylvester "received serious bodily injuries to my legs and face." He stated this incident was brought to the court's attention in his prior case, filed in 2010 and dismissed without prejudice in April 2011. He claimed he suffered damages and that Mansouri was responsible, asserting that e-mails purportedly from Mansouri were evidence, as well as a temporary restraining order Sylvester obtained. He believed that after Mansouri's "hired killer" botched the "assassination attempt" against him on May 22, he tried again on May 23, resulting in the assault. He demanded $10,000 in compensatory damages.

A police report regarding the alleged incident was not filed until May 12, 2010.

The temporary restraining order was dissolved approximately a month later.

The third cause of action alleged that Mansouri caused his divorce attorney to drop Sylvester as a client. He believed this was either based on threats or some sort of deal. He demanded that Mansouri reimburse him for the approximately $28,000 in legal fees he had paid to his divorce attorney, as well as interest and an additional $30,000 in compensatory damages.

Exactly what Sylvester attempted to allege in his fourth cause of action is unclear. As best as we can determine, it related to Sylvester's claim that Mansouri "coerced" him with "plausible death threats" to sign a marital settlement agreement in July 2009. He claimed he lost $126,000 plus interest exceeding $25,000.

The fifth cause of action is equally confusing. It beings: "Let me be clear Pedram Mansouri. You really f. . . up my divorce by not allowing me to have the agreement in Exhibit D. . . . My ex-wife couldn't control her spending and that's why I suggest to her we both do a bankruptcy without a divorce. But you and her cooked up another plan. Kill me and have my wife collect on my life insurance. When that failed, you switched to Plan B which was to throw the debt onto daddy (i.e. me) and then take me to the cleaners so I could do a bankruptcy. . . ." Sylvester also claimed Mansouri had illegally obtained a copy of his bankruptcy papers and kept "money away from that I was rightfully entitled." He concluded with: "Somehow I got to get through to you that your prejudice against me and the poor has got to stop. I'm asking for punitive damages against you of two years rent in a crummy apartment at $600 per month. That comes to $14,400. I'm asking for punitive damages against you of two years of cheap food at $200 per month. That comes to $4800." He claimed total damages of $418,000.

In August 2011, Sylvester filed a request for entry of default. He also filed a memorandum for setting a prove-up hearing. His initial filing was apparently rejected. When Sylvester appeared on October 19, the court advised him that it did not have his papers. Sylvester said he had resubmitted the filing. The court continued the hearing to November 21, stating: "If everything is in order, they'll send it up here to my clerk for me to review. If it's not in order, they'll send you another notice." Sylvester was advised that he did not need to appear if his papers were accepted, stating: "If you get the judgment signed and returned to you by then, you don't have to appear."

On November 18, the court filed a minute order, ordering the clerk to file three binders submitted by Sylvester. The minute order also stated: "The Plaintiff has not met his burden of proof to establish a valid cause of action upon which a judgment in his favor can be rendered and therefore the Court orders judgment be entered for the defendant, Pedram Mansouri."

Sylvester now appeals.

II


DISCUSSION

Inadequate Briefing

Sylvester's brief is, to put it charitably, a disaster. It ignores California Rules of Court, rule 8.204 (a)(2)(C), which requires appellant's opening brief to "[s]tate the nature of the action . . . and the judgment or order appealed from" and to "[p]rovide a summary of the significant facts limited to matters in the record." (Italics added.) While Sylvester's brief fails to specify the nature of the action or the specific order appealed from, it does include ample speculation, opinion, and many purported facts that are not referenced anywhere in the record.

The brief also fails to include a single citation to legal authority in its one page "argument." "An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) Appellate review begins with the assumption that the judgment is correct, and it is not the court's role to "construct theories or arguments to undermine the judgment and defeat the presumption of correctness." (Ibid.)

Sylvester's decision to represent himself on appeal does not entitle him to ignore these basic rules of practice and procedure. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) "'[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]' [Citation.]" (Ibid.) In the interests of justice, we shall make our best efforts to parse Sylvester's arguments, but any remaining points are waived for failure to submit adequate briefing. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

Motion to Augment

Sylvester has filed two motions to augment the record on appeal, dated April 4 and February 21, 2012. They are substantially identical, except that a proof of service was included in the April 4 motion. The other documents included in these requests are a "declaration statement" dated February 1, and a January 26 e-mail from the attorney referral service.

Sylvester also filed an earlier motion to augment with a reporter's transcript from a hearing in the trial court in this case and a proposed judgment form, which was granted.

The only documents that are properly included in a motion to augment are: "Any document filed or lodged in the case in superior court" or "A certified transcript— or agreed or settled statement—of oral proceedings not designated under rule 8.130." (Cal. Rules of Court, rule 8.155(a)(1)(A), (B).) Because neither the declaration nor the email was filed or lodged in the trial court, the motion to augment is denied.

Default Judgment in Mansouri's Favor

"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. [Citation.]" (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) The trial court's order is "'presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.' [Citation.]" (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.)

Sylvester argues: "Due to miscommunication(s) between Judge Banks and Robert, the file clerk, Judge Banks was compelled to render a premature judgment without reviewing crucial supporting evidence in three (3) bound volumes which were properly submitted to the court and available in the file clerk's office. If Judge Banks had access to this material at the time he made his ruling, I would have received a default judgment in my favor for the full $418,000 as stipulated in the statement of damages." He also states: "Sometime between October 20, 2011 and November 17, 2011, my Declaration Statement was scanned into the court record and the original document was delivered to Judge Banks. Per the earlier request of Judge Banks, that is all he received."

We begin by noting that the above statements are not reflected by the record. The November 18 minute order directs the clerk to file Sylvester's three binders, which indicates to us that they were reviewed and considered. Further, this is consistent with the court's statement during the October hearing, at which time Sylvester was informed he would be notified if his filing had been rejected. The record supports the conclusion that Sylvester's evidence was considered and rejected on the merits.

In any event, the court's judgment was correct, and Sylvester has failed to demonstrate error. (Fundamental Investment etc. Realty Fund v. Gradow, supra, 28 Cal.App.4th at p. 971.) Despite Sylvester's belief to the contrary, a plaintiff is not automatically entitled to a default judgment. "'Substantively, "[t]he judgment by default is said to 'confess' the material facts alleged by the plaintiff, i.e., the defendant's failure to answer has the same effect as an express admission of the matters well pleaded in the complaint."' [Citation.] The 'well-pleaded allegations' of a complaint refer to '"'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.'"' [Citations.]" (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281.) Therefore, if the complaint's allegations do not state a legally cognizable, well-pled cause of action, Sylvester is not entitled to a default judgment. (Id. at p. 282.)

The only causes of action that come anywhere close to comprehensibly stating a recognized claim are those alleging assault and coercion during the divorce case. The remaining causes of action fail to sufficiently plead a recognized cause of action. California does not recognize torts, for example, such as murdering an unrelated person. Without legally recognizable causes of action, no default judgment can be entered. (Kim v. Westmoore Partners, Inc., supra, 201 Cal.App.4th at p. 281.) While filled with purported evidence and opinion, most of Sylvester's "causes of action" simply fail to state cognizable legal claims upon which relief can be granted.

To the extent Sylvester claims Mansouri damaged him by his conduct during the divorce proceedings, Mansouri's actions during that case are protected by the litigation privilege, Civil Code section 47, subdivision (b). As pertinent here: "A privileged publication or broadcast is one made: [¶] . . . [¶] (b) In any . . . (2) judicial proceeding . . . ." (Civ. Code, § 47, subd. (b).) "The principal purpose of [Civil Code] section 47[, subdivision (b),] is to afford litigants . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]" (Silberg v. Anderson (1990) 50 Cal.3d 205, 213.) "[The privilege] applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation . . . . [Citations.]" (Id. at p. 212.) Thus, Mansouri's purported acts of "coercion" are protected by the litigation privilege. Indeed, this is precisely the type of derivative tort action the privilege was intended to address.

The only remaining cause of action, assault, is barred as a matter of law by the two-year statute of limitations. (Code Civ. Proc., § 335.1.) The relevant dates are admitted by Sylvester in the complaint and its voluminous attachments. He was allegedly assaulted on May 23, 2009. He did not file the instant lawsuit until June 23, 2011, a month after the statute of limitations expired. Because Sylvester admitted in the complaint in his earlier case that he learned of Mansouri's purported involvement in the alleged attack within the limitations period, Sylvester has no claim for any sort of equitable tolling. There is also no legal basis for applying the doctrine of relation back to a different case that was voluntarily dismissed by the plaintiff. Because his claim is barred as a matter of law, Sylvester is not entitled to a default judgment. (See International Engine Parts v. Feddersen & Co. (1995) 9 Cal.4th 606, 611 [when relevant facts are undisputed, statute of limitations may be decided as a matter of law].)

In sum, Sylvester's complaint failed to state a cause of action upon which relief could be granted. The trial court therefore properly entered judgment in Mansouri's favor.

III


DISPOSITION

The judgment is affirmed. The parties are to bear their own costs on appeal.

MOORE, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.


Summaries of

Sylvester v. Mansouri

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jun 27, 2012
No. G046148 (Cal. Ct. App. Jun. 27, 2012)
Case details for

Sylvester v. Mansouri

Case Details

Full title:JAMES H. SYLVESTER, Plaintiff and Appellant, v. PEDRAM MANSOURI, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jun 27, 2012

Citations

No. G046148 (Cal. Ct. App. Jun. 27, 2012)