Mellein v. Gerges CA2/3 ( 2016 )

Filed 3/14/16 Mellein v. Gerges CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 THREE
JAMES MELLEIN, B255462
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PC053489)
v.
MOTAZ M. GERGES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Melvin D. Sandvig, Judge. Affirmed.
Motaz M. Gerges, in pro. per., for Defendant and Appellant.
Paul Kujawsky for Plaintiff and Respondent.
__________________________
Defendant/Appellant Motaz M. Gerges (“Attorney”) entered into an agreement
with Plaintiff/Respondent James Mellein (“Client”) to prepare briefs in two of Client’s
appellate matters. When Attorney allegedly failed to file adequate appellate briefs in
either case, Client sued Attorney for breach of contract and money had and received,
and he obtained a judgment in his favor. Attorney subsequently filed a motion for
a new trial, which was denied.
Attorney appeals from the judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Client retained Attorney to represent him in two appeals referred to by the parties
as the “Castroll” appeal and the “Virtual” appeal. The attorney-client agreement
provided that Client would pay Attorney a flat fee of $10,000 for the Castroll appeal and
a flat fee of $20,000 for the Virtual appeal, with the first half of each fee (the retainer)
due immediately, and the second half due upon completion of the appellate briefs.
Client filed a complaint against Attorney on August 8, 2012, for breach of
contract and money had and received. The complaint alleged that Attorney prepared an
“incomplete, incompetent” appellant’s opening brief in the Virtual appeal, which the
Court of Appeal rejected, and refused to prepare a brief in the Castroll appeal. As
a result, Client had to retain new counsel to file briefs in both cases. Client demanded
that Attorney return the retainers, but Attorney refused to do so.
The case proceeded to a bench trial, which was unreported. The court entered
a judgment in favor of Client for $29,937.41.
Attorney filed a motion for new trial, which the trial court denied. Attorney
timely appealed the judgment, designating an appellant’s appendix in lieu of a clerk’s
transcript and a settled statement in lieu of a reporter’s transcript.1
1
The notice of appeal filed March 25, 2014, purports to appeal from the order
denying the motion for new trial, as well as from the judgment. An order denying a
motion for new trial is not separately appealable, but is reviewable on appeal from the
underlying judgment. (Walker v. Los Angeles County Metropolitan Transportation
Authority (2005) 35 Cal. 4th 15, 19.)
2
On October 3, 2014, the trial court certified Attorney’s proposed settled
statement, together with Client’s amendments to the settled statement, as the settled
statement on appeal. In doing so, the trial court struck a portion of Attorney’s proposed
settled statement.2
DISCUSSION
I.
The Trial Court Did Not Err in Striking a Portion of
Attorney’s Proposed Settled Statement
Attorney contends the trial court erred in striking portions of his proposed settled
statement. For the reasons that follow, we disagree.
The California Rules of Court (rules) permit an appellant to use a settled
statement in lieu of a reporter’s transcript if the designated oral proceedings “were not
reported or cannot be transcribed.” (Rule 8.137(a)(2)(B).)
An appellant intending to proceed by settled statement must file with the superior
court a motion to use a settled statement, as well as a “condensed narrative of the oral
proceedings that the appellant believes necessary for the appeal.” (Rule 8.137(b)(1).)
The respondent may then serve and file proposed amendments to the settled statement.
(Rule 8.137(b)(4).) At a noticed hearing, the judge “must settle the statement and fix
the times within which the appellant must prepare, serve, and file it.”
(Rule 8.137(c)(2).)
If the appellant fails to persuade the trial judge that his statement accurately
reflects the proceedings in question, “the action of the trial judge, who heard and tried
the case, must be regarded as final. [The trial judge’s] familiarity with the trial and
knowledge of what took place there make him uniquely qualified to determine what the
evidence was and whether it has been correctly stated.” (Burns v. Brown (1946)
2
Another lawyer, Leonard Chaitlin, was a codefendant and also filed an appeal
from the judgment. Chaitlin dismissed his appeal on December 10, 2014, apparently in
connection with a Chapter 7 bankruptcy proceeding. Accordingly, this appeal concerns
the judgment as to Attorney only.
3
27 Cal. 2d 631, 636; accord, Marks v. Superior Court (2002) 27 Cal. 4th 176, 196
[quoting Burns v. Brown].) Accordingly, we review the trial court’s order striking
portions of the proposed settled statement for an abuse of discretion. (Garwick v.
Gordon (1953) 121 Cal. App. 2d 247, 250; see also Pollard v. Saxe & Yolles Dev. Co.
(1974) 12 Cal. 3d 374, 376, fn. 1 [“the trial judge has full power over the record, and as
long as he does not act arbitrarily, his action is final.”].)
In the present case, the trial court did not abuse its discretion by striking the first
six paragraphs of Attorney’s proposed settled statement. By Attorney’s own admission,
the stricken portions of the proposed settled statement were a statement of “the positions
of the parties at trial”—not “a condensed narrative of the oral proceedings,” as the Rules
require. (Rules 8.137(a) & 8.137(b)(1).) Accordingly, the trial court properly struck
these paragraphs.
II.
Attorney Did Not Provide the Court With an Adequate Record
to Evaluate His Remaining Claims of Error
Attorney contends the trial court erred by permitting attorney Paul Kujawsky to
testify as an expert witness for Client and by denying Attorney’s motion for a new trial.
Attorney also contends that substantial evidence did not support the judgment. For the
reasons that follow, these contentions fail.
Attorney contends that the trial court erred in accepting Kujawsky as an expert
witness because, among other things, Kujawsky has not been certified as an appellate
expert by the California State Bar, and he admitted that he did not read the appellate
record. These arguments are meritless. The trial court’s ruling admitting expert
testimony is reviewed for an abuse of discretion (Sargon Enterprises, Inc. v. University
of Southern California (2012) 55 Cal. 4th 747, 773) and a ruling constitutes an abuse of
discretion only if it is “ ‘so irrational or arbitrary that no reasonable person could agree
with it.’ ” (Ibid.) In view of Kujawsky’s three decades of experience as an appellate
practitioner, the trial court was well within its discretion in admitting his expert
testimony, irrespective of the fact that Kujawsky is not a certified appellate specialist.
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Further, the extent of Kujawsky’s familiarity with the appellate record merely goes to
the weight of his opinion, rather than to his qualifications as an appellate expert.
Moreover, even assuming that Kujawsky should not have been permitted to give
expert testimony, we could reverse only if we could conclude that the erroneous
admission of evidence was prejudicial—i.e., “[that] it is reasonably probable a result
more favorable to the complaining party would have been reached absent the error.
(Cal. Const., art. VI, § 13 [no judgment shall be set aside on the ground of evidentiary
error unless error resulted in miscarriage of justice]; Code Civ. Proc., § 475 [reviewing
court must disregard nonprejudicial error and presume trial court error was
nonprejudicial]; see Continental Baking Co. v. Katz (1968) 68 Cal. 2d 512, 527.)”
(Nazari v. Ayrapetyan (2009) 171 Cal. App. 4th 690, 697.) The settled statement
contains a summary of the testimony of only two witnesses— Kujawsky and Client. It
does not identify any other witnesses who may have testified, the substance of their
testimony, or any documentary evidence on which the parties relied. In the absence of a
complete record, because we simply do not know what other evidence was before the
court, we cannot determine whether a different result would have been likely had
Kujawsky not been permitted to testify.
Attorney’s failure to provide us with a complete record is also fatal to his claims
that substantial evidence did not support the judgment. To reverse for lack of
substantial evidence, we “must review the whole record to determine whether it
supports the judgment.” (Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013)
218 Cal. App. 4th 828, 840.) We “may not confine [our] consideration to isolated bits of
evidence.” (Ibid.) In the absence of the “whole record,” therefore, we cannot reverse
for lack of substantial evidence.
Attorney contends finally that the trial court erred in denying his motion for new
trial because “there existed insufficient evidence to support the judgment rendered” and
“the Court erred in crediting the testimony of defendant’s expert witness.” These
contentions fail for all the reasons discussed above.
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DISPOSITION
The judgment is affirmed. Respondent is awarded his appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J
We concur:
ALDRICH, J.
LAVIN, J.
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