Johnson v. Syed CA2/5 ( 2015 )

Filed 7/15/15 Johnson v. Syed CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
DARLENE DUQUETTE JOHNSON, B258701
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SC120286)
v.
KAMRAN SYED,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of Los Angeles County, Gerald
Rosenberg, Judge. Affirmed; monetary sanctions imposed.
Kamran Syed, in pro. per., for Defendant and Appellant.
R. Lance Belsome for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Kamran Syed, appeals from a judgment following a court trial and
order denying his new trial motion. Plaintiff, Darlene Duquette Johnson, brought a cause
of action against defendant and Los Angeles Film Society for financial abuse of a
dependent adult under Welfare and Institutions Code section 15610.30. Plaintiff served
admissions requests on defendant. Defendant did not serve a proper response and
plaintiff moved to have the admissions request deemed admitted. The trial court granted
plaintiff’s motion. Following a bench trial on the financial abuse cause of action, the trial
court found in favor of plaintiff. The trial court relied upon the deemed admissions order.
Defendant moved for a new trial, contending he should be relieved from the deemed
admissions order. Defendant concurrently moved for relief from the deemed admitted
order. The trial court denied both motions.
Defendant contends the trial court erred by deeming the request for admissions
admitted. We affirm the judgment and order. We also find defendant’s appeal was taken
solely for an improper purpose. Thus, we grant plaintiff’s monetary sanctions motion.
II. BACKGROUND
A. Plaintiff’s Complaint
On March 7, 2013, plaintiff filed a complaint against Beth Shaw, Yogafit Training
Systems Worldwide, Incorporated, Seven Bricks Holdings, LLC, Yogaflair LLC, and
Does 1 through 20. Plaintiff complained of: financial abuse of a dependent adult;
fiduciary duty breach; conversion; constructive trust imposition; privacy invasion;
wrongful termination in violation of public policy; contract breach; and for an
accounting. Plaintiff later amended her complaint pursuant to Code of Civil Procedure
section 474 to name defendant and Los Angeles Film Society to her causes of action for
financial abuse of a dependent adult and conversion.
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We will focus on the allegations against defendant which are pertinent to this
appeal. Plaintiff was a dependent adult within the meaning of Welfare and Institutions
Code section 15610.23. She struggled with a debilitating mental condition from 2002.
She was diagnosed as suffering from bipolar disorder and other mental disorders. She is
susceptible to episodes of acute psychological disability. During such episodes, plaintiff
was involuntarily hospitalized.
On April 6, 2011, plaintiff suffered a psychological episode, was removed from
her home and detained under Welfare and Institutions Code section 5150. While plaintiff
was held in a psychiatric hospital, Ms. Shaw misappropriated plaintiff’s Land Rover and
other personal property. This included records, identification, driver’s license, keys,
computer, contracts, clothes, furniture and service dogs.
For plaintiff’s cause of action for financial abuse of a dependent adult, she alleges
that the conduct occurred while she was held in a psychiatric hospital for 24 hours.
Plaintiff alleges economic, reputational and physical harm and pain and mental suffering.
For plaintiff’s conversion cause of action, she alleges defendant removed from her home
her personal property, including the Land Rover, various items of jewelry and records.
Plaintiff also alleges defendant acted with recklessness, oppression, fraud or malice in
conscious disregard of her interests. Plaintiff requests as relief general and punitive
damages, reasonable attorney fees, and costs. Plaintiff settled her claims against other
defendants except for the Los Angeles Film Society.
B. Plaintiff’s Admissions Requests and Deemed Admitted Motion
On April 2, 2014, plaintiff served defendant with admissions requests. Also
served with admissions requests was the codefendant, Los Angeles Film Society.
Plaintiff moved for an order that the matters in the requests for admission be deemed
admitted on May 12, 2014. Plaintiff contended defendant failed to properly serve
responses to the admissions requests. On June 9, 2014, defendant filed his opposition.
Defendant contended he served all responses to plaintiff’s discovery requests. Defendant
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provided as an exhibit the first page of the facsimile transmission of the responses of the
Los Angeles Film Society to plaintiff’s admissions requests. The opposition contained
nothing else concerning any response by defendant. On June 10, 2014, the trial court
issued an order granting plaintiff’s motion. As a result, defendant was deemed to have
admitted the following: prior to and since April 13, 2011, he was informed that plaintiff
suffered from a mental disability; he was informed that plaintiff was a dependent adult;
from April 5 through 12, 2011, plaintiff was an in-patient in a 24-hour health facility
within the meaning of Welfare and Institutions Code section 15610.23, subdivision (b);
between and since that time period, defendant exercised control over plaintiff’s property;
between April 5 through 12, 2011, defendant misappropriated plaintiff’s property; at no
time since April 12, 2011 has he returned plaintiff’s property; between April 5 and 12,
2011, and since, he caused plaintiff’s Land Rover to be transferred to himself; plaintiff
did not meet or speak with him at her home in 2011; and plaintiff never told him she
intended to donate her Land Rover to any charitable organization.
C. Bench Trial
On June 30, 2014, trial was held. Plaintiff agreed to dismiss without prejudice her
conversion cause of action. She proceeded solely on her Welfare and Institutions Code
section 15610.30 claim for financial abuse of a dependent adult. According to a minute
order, both plaintiff and defendant testified. No reporter’s transcript of any proceeding
has been provided by defendant. According to a minute order, the trial court found that
based on the June 10, 2014 order regarding the deemed admissions, plaintiff had proven
her cause of action. Judgment was entered against defendant in the amount of $24,000
plus interest from April 13, 2011, which was $5,399.01. Monetary sanctions were
imposed regarding the deemed admissions order in the amount of $1,520 plus an interest
rate of 10 percent per annum. Judgment was formally entered July 17, 2014.
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D. New Trial and Relief from Admissions Motions
On July 21, 2014, defendant moved for new trial. He argued the deemed
admissions order was erroneous and materially affected the judgment. As noted, the
responding party listed on the admission request response is the codefendant, Los
Angeles Film Society. He contended that responses were served by facsimile
transmission in good faith to plaintiff’s counsel on June 5, 2014, and personally served
prior to the June 10, 2014 motion hearing. Defendant concurrently filed a motion for
relief from the admissions under Code of Civil Procedure section 2033.300, subdivision
(a). Defendant declared he personally served plaintiff’s counsel at the June 10, 2014
hearing. Defendant attached the admissions request responses of the Los Angeles Film
Society as an exhibit to his motion.
Plaintiff’s counsel declared defendant did not serve a copy of the proposed
responses to the admissions requests on June 10, 2014. Plaintiff also denied ever
receiving proper service via facsimile transmission. The parties did not have a facsimile
transmission agreement for service under Code of Civil Procedure section 1013,
subdivision (e). As an exhibit, plaintiff included the documents actually sent by facsimile
transmission by defendant on June 5, 2014. The attached proof of service indicates
personal service was accomplished by defendant on June 4, 2014.
On August 26, 2014, the trial court heard argument as to the new trial and relief
from admissions motions. As noted, no substitute for a reporter’s transcript has been
filed by defendant. The new trial motion was denied. The motion for relief from the
deemed admitted order was denied because it could not be heard post-judgment.
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III. DISCUSSION
A. Defendant’s Arguments
Defendant’s sole argument on appeal is that the trial court erred by deeming
admitted the matters in plaintiff’s specified admissions requests. Defendant seeks a new
trial and relief from the deemed admitted order. Alternatively, defendant requests we
enter a new judgment in his favor.
B. Inadequate Record on Appeal
No reporter was present during the deemed admitted motion hearing, the bench
trial or the new trial motion hearing. In numerous situations, appellate courts have
refused to reach the merits of an appellant’s claims because no reporter’s transcript of a
pertinent proceeding or a suitable substitute was provided. (Walker v. Superior Court
(1991) 53 Cal. 3d 257, 273–274 [transfer order]; Maria P. v. Riles (1987) 43 Cal. 3d 1281,
1295–1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal. 3d 564, 574–
575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P. (1979) 25 Cal. 3d
91, 102 [hearing to determine whether counsel was waived and the minor consented to
informal adjudication]; Boeken v. Philip Morris, Inc. (2005) 127 Cal. App. 4th 1640, 1672
[transcript of judge's ruling on an instruction request]; Vo v. Las Virgenes Municipal
Water Dist. (2000) 79 Cal. App. 4th 440, 447 [trial transcript when attorney fees sought];
Estate of Fain (1999) 75 Cal. App. 4th 973, 992 [surcharge hearing]; Hodges v. Mark
(1996) 49 Cal. App. 4th 651, 657 [nonsuit motion where trial transcript not provided];
Interinsurance Exchange v. Collins (1994) 30 Cal. App. 4th 1445, 1448 [monetary
sanctions hearing]; Null v. City of Los Angeles (1988) 206 Cal. App. 3d 1528, 1532
[reporter's transcript fails to reflect content of special instructions]; Buckhart v. San
Francisco Residential Rent Etc., Bd. (1988) 197 Cal. App. 3d 1032, 1036 [hearing on
Code Civ. Proc., § 1094.5 petition]; Sui v. Landi (1985) 163 Cal. App. 3d 383, 385–386
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[motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit (1979) 88
Cal. App. 3d 706, 713–714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230
Cal. App. 2d 70, 71–73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221
Cal. App. 2d 460, 462 [failure to secure reporter’s transcript or settled statement as to
offers of proof]; Wetsel v. Garibaldi (1958) 159 Cal. App. 2d 4, 10 [order confirming
arbitration award].)
Here, no reporter was present for the deemed admitted motion hearing, the bench
trial or the new trial motion hearing. Defendant did not submit an adequate substitute for
a reporter’s transcript. Without a settled or agreed statement of these proceedings,
plaintiff argues we cannot consider defendant’s contentions for the reasons expressed in
the immediately preceding paragraph. On this ground alone, we agree the judgment must
be affirmed.
C. Sanctions
Plaintiff also moves for monetary sanctions against defendant for filing a frivolous
appeal and for an improper purpose. Plaintiff contends defendant: stated orally and in
writing he would force her to expend resources defending her judgment against him if she
did not dismiss the action in exchange for $1,000 paid annually for 10 years; stated he
would file bankruptcy; failed to serve her with filed documents on appeal; failed to cite
the underlying record in his opening brief; omitted material parts of the record; requested
to dismiss this appeal on January 23 but then only later requested reinstatement of the
appeal on January 26, 2015; admitted colluding with two other people to take her Land
Rover while she was hospitalized to satisfy a business debt, thus admitting to the
underlying facts of her cause of action; and admitted giving false testimony in deposition
and at trial to conceal these facts. Plaintiff requests as relief in her sanctions motion
attorney fees and costs incurred on appeal.
This is a proper case for the imposition of monetary sanctions. Plaintiff’s
counsel, R. Lance Belsome, has filed a lengthy declaration setting forth grounds which
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justify the imposition of monetary sanctions. According to Mr. Belsome, the following
occurred on August 26, 2014: “[A]fter the hearing on his post-trial motions, [defendant]
told me he would agree to pay [plaintiff] $1,000 a year over ten years if she dismissed her
case. (Judgment had been entered for $39,919 and the motion for attorney fees had not
yet been decided.) [Defendant] told me, if his offer was rejected, he could easily ‘cut and
paste’ his post-trial motions into an appellate brief and require me to waste more time on
this case. I told him that, if he did that, [plaintiff] would seek attorney fees on appeal and
he may wind-up owing her more after the appeal. [Defendant] told me he would just
declare bankruptcy when the appeal was denied.” Further, in an August 28, 2014 letter,
defendant indicated he would like to save himself and plaintiff time by offering to settle.
In addition, plaintiff threatened to declare bankruptcy if his offer of settlement was
denied. Also in a August 30, 2014 letter, defendant referenced the fact plaintiff would be
exhausting her resources by pursuing the appeal if he was successful.
On January 22, 2015, defendant telephoned Mr. Belsome. In that telephone
conversation, defendant admitted giving false testimony because he had been threatened
with criminal prosecution. Mr. Belsome agreed to meet with defendant that day. In that
meeting, defendant admitted receiving the Land Rover from a friend, Ellen Lavinthal,
with whom he had been romantically involved. Ms. Lavinthal was a close friend of Beth
Shaw. (Ms. Shaw is named as a codefendant in the complaint.) Ms. Lavinthal offered
the Land Rover to defendant in lieu of a debt owned by Ms. Shaw for photography work.
Ms. Lavinthal instructed defendant that if he was ever questioned about how he came into
possession of the Land Rover, he should say, ‘“[Plaintiff] is crazy, you can’t believe
anything she says.’” Although warned not to do so, defendant agreed to take the Land
Rover because he was having difficulty being paid by Ms. Shaw. The Land Rover was
delivered to defendant’s apartment on a flat-bed truck. Ms. Shaw instructed defendant
how to hide the Land Rover from people who knew it belonged to plaintiff.
After being served as a fictitiously named defendant along with the Los Angeles
Film Society, defendant spoke to both Ms. Shaw and Ms. Lavinthal. Defendant was told
by Ms. Shaw and Ms. Lavinthal that if he did not falsely testify as to how he secured the
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Land Rover, he could be charged grand theft. Ms. Shaw then provided defendant with a
false written statement as to how he secured the Land Rover. According to Mr. Belsome,
defendant described the false written statement provided by Ms. Shaw: “It included a
physical description of [plaintiff], a false account of when and where he met and saw
[plaintiff], and a false account of when and where [plaintiff] purportedly stated she would
donate the [Land Rover].” That false written statement, after editing, was used by
defendant’s then attorney to attempt to negotiate a dismissal of this action. According to
Mr. Belsome, “That false account wasted hours of the trial court time and many hours of
my time.” In their January 22, 2015 conversation, Mr. Belsome described defendant’s
admission of culpability: “[Defendant] told me he had been ‘duped’ by [Ms.] Shaw and
[Ms.] Lavinthal into taking the [Land Rover] . . . because they threatened him. He told
me he had e[-]mail, text messages, and other documents corroborating what he stated and
would provide them to me.”
During the January 22, 2015 meeting, Mr. Belsome raised the issue of defendant’s
failure to serve litigation documents. Mr. Belsome’s declaration states: “I specifically
told [defendant] that he was required to serve me with copies of anything he filed in this
case. I told them he was signing false proofs of service under oath and that the court
clerk knew he was not serving me because each time he did this I had to obtain copies
from the clerk. [Defendant] did not say anything in response. He just looked at me and
smirked.” According to Mr. Belsome’s declaration, at the end of their January 22, 2015
meeting, he “demanded” that the present appeal be dismissed.
On January 26, 2015, defendant telephoned Mr. Belsome. Defendant stated that
he was going to file the request to dismiss the appeal. Defendant agreed to bring a copy
of the conformed dismissal request to Mr. Belsome’s office along with the e-mail and
other documents they had previously discussed on January 22, 2015. Later on January
26, 2015, defendant appeared at Mr. Belsome’s office as promised. According to Mr.
Belsome’s declaration: “[Defendant] then told me he was having second thoughts about
admitting he testified falsely because he was concerned he would never be able to be
involved in future litigation if he did that. He said he wanted to make [Ms.] Shaw and
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[Ms.] Lavinthal satisfy the judgment without admitting he gave false testimony. After,
again, listening to him for some time I told him I did not know if it was possible to do
what he wanted and that I would not put any effort into supporting his false testimony.”
Mr. Belsome then asked defendant to leave.
After reviewing this court’s website, Mr. Belsome then learned defendant had
filed a dismissal request on January 23, 2015. Additionally, Mr. Belsome discovered
defendant had filed, on January 26, 2015, a request to withdraw the January 23 dismissal
request. In addition, on January 26, 2015, defendant filed an extension of time request.
None of these documents were served on Mr. Belsome. Moreover, in their conversations,
defendant never related that he had filed them.
Defendant has filed a lengthy brief challenging the imposition of monetary
sanctions against him. However, defendant has not filed a counter-declaration. After
conducting a hearing on plaintiff’s monetary sanctions motion and weighing the
evidence, monetary sanctions are imposed against defendant in the sum of $53,153.44.
The weight of the evidence indicates the present appeal has been taken for improper
purposes—to delay payment and annoy and harass plaintiff and her counsel. (Code Civ.
Proc., § 907; Cal. Rules of Court, rule 8.276(a).) The prosecution of an appeal for an
improper purpose is a distinct basis for imposing sanctions apart from frivolousness.
(Personal Court Reporters, Inc. v. Rand (2012) 205 Cal. App. 4th 182, 191; In re
Marriage of Gong and Kwong (2008) 163 Cal. App. 4th 510, 516.) Mr. Belsome has
documented the fact his client has, on appeal, incurred attorney fees and costs in the sum
of $53,153.44. We need not discuss related issues as to whether sanctions should be
imposed on other grounds. We need not discuss whether the appeal is frivolous, in whole
or in part, or if there has been a violation of court rules pertinent to the preparation of an
appendix.
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IV. DISPOSITION
The judgment is affirmed. Plaintiff, Darlene Duquette Johnson, is awarded her
appeal costs from defendant, Kamran Syed. Plaintiff’s monetary sanctions motion is
granted. Monetary sanctions are imposed on Mr. Syed in plaintiff’s favor in the amount
of $53,153.44, payable upon remittitur issuance.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
KRIEGLER, J.
KIRSCHNER, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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