U.S. National Bank Assn. v. Sepehry-Fard CA6 ( 2022 )

Filed 5/18/22 U.S. National Bank Assn. v. Sepehry-Fard CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
U.S. NATIONAL BANK H047028
ASSOCIATION, (Santa Clara County
Super. Ct. No. 17CV314286)
Plaintiff and Respondent,
v.
FAREED SEPEHRY-FARD,
Defendant and Appellant.
Defendant and appellant Fareed Sepehry-Fard seeks review of a trial court order
denying his motion to recuse the law firm of Severson & Werson (Severson) as counsel
for plaintiff and respondent U.S. National Bank Association (the Bank). Finding no
error, we affirm the order.
I. FACTUAL AND PROCEDURAL BACKGROUND1
The Bank, as trustee for Greenpoint Mortgage Trust Mortgage Pass-Through
Certificates, Series 2007-AR2, commenced the underlying litigation by filing a complaint
for unlawful detainer and damages against Sepehry-Fard in 2017, citing Code of Civil
Procedure section 1161a.2 The Bank alleged that it purchased certain real property
1
Pursuant to this court’s April 2021 order limiting the issue on appeal to only the
trial court’s order denying Sepehry-Fard’s motion to recuse Severson as counsel, our
discussion will similarly be limited to facts and procedure related to that order.
2
Relevant to this appeal, the statute provides, “[A] person who holds over and
continues in possession of . . . real property after a three-day written notice to quit the
property has been served upon the person . . . may be removed therefrom as prescribed in
located in Saratoga, California “at a trustee’s sale held in accordance with Civil Code
section 2924, under a power of sale contained in a deed of trust” that Sepehry-Fard
signed in January 2007, such that it was entitled to possession of the property, which was
occupied by Sepehry-Fard at the time it filed the complaint.3 The Bank served a three-
day notice to quit to Sepehry-Fard; the Bank then sought possession of the property and
damages based on Sepehry-Fard’s failure to comply with the notice to quit. Severson is
listed as the Bank’s attorney in the caption of the complaint. In signing the complaint,
Severson stated it represented plaintiff Nationstar Mortgage LLC, a party not previously
referenced in the complaint. A.J. Loll verified the complaint as “Attorney-In-Fact as
Trustee of Nationstar Mortgage LLC.”4
In September 2017, the Bank filed an ex parte request seeking permission to serve
the complaint on Sepehry-Fard by posting pursuant to Code of Civil Procedure section
415.45, which the trial court granted. Shortly thereafter, Sepehry-Fard filed an answer to
the verified complaint, admitting that he was in possession of the property, but denying
that the Bank obtained valid title to the property based on alleged irregularities in the
foreclosure process that lead to the trustee’s sale. In his answer, Sepehry-Fard did not
allege that the trial court did not have personal jurisdiction over him, or subject matter
jurisdiction in the litigation.
this chapter: [¶] . . . [¶] (3) Where the property has been sold in accordance with Section
2924 of the Civil Code, under a power of sale contained in a deed of trust executed by
such person, or a person under whom such person claims, and the title under the sale has
been duly perfected.” (Code Civ. Proc., § 1161a, subd. (b)(3).)
3
The Bank filed the complaint as a limited jurisdiction matter. Upon Sepehry-
Fard’s motion, the court reclassified the case from limited to unlimited jurisdiction in
2019.
4
In a motion for summary judgment filed in 2017, the Bank indicated that
Sepehry-Fard borrowed funds from Greenpoint Mortgage Funding, Inc., secured by a
deed of trust on the Saratoga property. Greenpoint assigned the deed of trust to
Nationstar in 2013; Nationstar thereafter assigned it to the Bank in January 2017.
2
In January 2019, Sepehry-Fard filed a motion to recuse Severson as the Bank’s
attorneys. Sepehry-Fard suggested he was seeking recusal based on the “alleged
attorneys repeated concealment of evidence . . . and their clear and unambiguous ‘willful
Brady violation’, Brady v. Maryland (1963) 373 U.S. 83 [(Brady)]”; in addition to citing
Brady, Sepehry-Fard argued Severson had a duty to produce discoverable exculpatory
evidence under Penal Code section 1054.1 et seq. He cited Business and Professions
Code sections 6068, subdivision (a) [“It is the duty of an attorney to . . . support the
Constitution and laws of the United States and of this state.”] and 6106 [“The
commission of any act involving moral turpitude, dishonesty or corruption, whether the
act is committed in the course of his relations as an attorney or otherwise, and whether
the act is a felony or misdemeanor or not, constitutes a cause for disbarment or
suspension.”], as well as former rule 5-220 of the California Rules of Professional
Conduct, in support of his recusal request.5
Sepehry-Fard argued recusal was proper, and the complaint subject to dismissal
for lack of jurisdiction, because Severson purposefully filed the complaint as a limited
jurisdiction matter, rather than an unlimited jurisdiction matter, in order to “steal” the
property and Sepehry-Fard’s “significant” equity therein. He claimed an unlawful
detainer proceeding was not the proper method by which the Bank could address its
claims, as unlawful detainer proceedings were based in landlord-tenant law, and Sepehry-
Fard was an owner of the property, not a tenant. Sepehry-Fard asked the court to refer
Severson to the Office of Chief Trial Counsel of the State Bar for disbarment, alleging
that the firm engaged in additional unlawful conduct. To the extent any of the facts were
5
Former rule 5-220 precluded a member of the California state bar from
suppressing any evidence that the member or the member’s client had a legal obligation
to produce. (See Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1,
13.) Current rule 3.4(b), adopted effective November 1, 2018, prior to Sepehry-Fard
filing the recusal motion, provides, “A lawyer shall not . . . suppress any evidence that the
lawyer or the lawyer’s client has a legal obligation to reveal or to produce[.]”
3
in dispute, he asked the court to refer the matter to a grand jury. He did not address his
standing to seek Severson’s recusal, or the trial court’s inherent authority to recuse
Severson as the Bank’s counsel.
The Bank opposed Sepehry-Fard’s motion for recusal, contending Sepehry-Fard
failed to cite any relevant law supporting the request.
The trial court heard argument on Sepehry-Fard’s motion to recuse, along with
several other motions, in February 2019.6 It issued a written order on February 26, 2019,
denying the motion for recusal on the grounds that it did “not set forth any cognizable
legal basis for ‘recusal’ of Plaintiff’s counsel.” In addition, the court ruled on nine other
motions filed by Sepehry-Fard, and two requests filed by the Bank.
On February 26, 2019, Sepehry-Fard filed a notice of appeal from a January 2019
order denying his request for an evidentiary hearing as to the Bank’s standing in the
action. On February 28, 2019, Sepehry-Fard amended his notice of appeal to seek review
of the January 2019 order, and the February 26, 2019 order ruling on his many motions,
including the motion to recuse Severson. He filed a second amended notice of appeal in
June 2019, and a third amended notice in December 2019, seeking to add review of
additional orders to the instant appeal. In an order issued in April 2021, this court
dismissed the February 26, 2019, June 5, 2019, and December 27, 2019 notices of appeal
as premature as the trial court had not yet entered a final judgment, and the orders
Sepehry-Fard included in those notices were not independently appealable. As for the
February 28, 2019 notice of appeal, seeking review of the orders issued on February 26,
2019, we ruled that only the order denying the motion to recuse Severson was appealable
at that time, such that the appeal would proceed solely as to that order.
6
In its written order, the trial court noted, “There was no court reporter present to
transcribe the oral argument. [Fn. omitted.] For the parties’ convenience and to facilitate
appellate review, the Court provides a written order memorializing its rulings on these
motions and requests.”
4
II. DISCUSSION
A. Preliminary Motions
Prior to discussing the merits of Sepehry-Fard’s appeal from the motion to recuse
Severson, we address motions brought by the parties in the course of briefing.
1. Sepehry-Fard’s Requests for Judicial Notice and Motions to Augment
Prior to this appeal being fully briefed, Sepehry-Fard filed various requests for
judicial notice and motions to augment the record on appeal which we deferred for
consideration with the appeal. Since filing his reply brief, Sepehry-Fard has filed eight
additional motions to augment the record on appeal, including two filed after this court
ordered the cause submitted.
When we review the correctness of a trial court’s order, we generally only
consider matters that were part of the record at the time the trial court entered the order.
(Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444 (Vons).) A
party on appeal cannot use the augmentation process to present materials that were not
before the trial court at the time of the order, including matters that occurred during the
pendency of the appeal. (Ibid.; In re K.M. (2015) 242 Cal.App.4th 450, 456.) Nor do we
normally take judicial notice of matters that were not before the trial court. (Vons, at
p. 444.) The party seeking judicial notice must demonstrate the relevance of the
materials to the dispositive issues in the appeal. (See Doe v. City of Los Angeles (2007)
42 Cal.4th 531, 544, fn. 4; Roth v. Jelley (2020) 45 Cal.App.5th 655, 678, fn. 10.)
Sepehry-Fard has not demonstrated that the materials with which he seeks to
augment the record were before the trial court when it issued the order denying his
motion to recuse Severson on February 26, 2019. Nor has Sepehry-Fard demonstrated
that the subjects of his requests for judicial notice are relevant to the dispositive issue on
appeal, namely the trial court’s alleged error in denying his motion to recuse Severson.
Sepehry-Fard’s motions to augment the record (filed August 4, August 13, November
5
127, and December 30, 2021, and January 24, February 3, March 16, and April 21, 2022),
and his requests for judicial notice (filed June 1 and July 30, 2021), are denied.
2. The Bank’s Motion for Summary Affirmance or Dismissal, and
Related Cross-Motion
After receiving Sepehry-Fard’s opening brief, the Bank filed a motion for
summary affirmance or for dismissal of the appeal as frivolous. Sepehry-Fard opposed
the motion and filed a separate cross-motion to strike the Bank’s motion. This court
deferred ruling on both motions for consideration with this appeal.
Sepehry-Fard does not cite in his cross-motion any basis to strike the Bank’s
motion to dismiss outright. As he has not shown reason to strike the motion to dismiss,
his cross-motion is denied. Nor has the Bank shown sufficient reason for this court to
exercise its inherent power to dismiss appeals that are frivolous or taken solely for the
purpose of delay. We exercise that power only in “the absolutely clearest cases[,]” where
the frivolity is readily apparent and egregious. (People ex rel. Lockyer v. Brar (2004)
115 Cal.App.4th 1315, 1318; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) It
is not enough that an appeal is simply without merit. “[T]he borderline between a
frivolous appeal and one which simply has no merit is vague indeed. . . . The difficulty
of drawing the line simply points up an essential corollary to the power to dismiss
frivolous appeals: that in all but the clearest cases it should not be used.” (People v.
Sumner (1968) 262 Cal.App.2d 409, 415.) Given the nature of the underlying action, it is
not readily apparent that this appeal is patently frivolous or brought for improper motive.
(See Zimmerman v. Drexel Burnham Lambert Inc. (1988) 205 Cal.App.3d 153, 160-161.)
We deny the motion to dismiss.
7
This court’s March 1, 2022 order deferring ruling on several motions to augment
erroneously indicated there were motions filed November 11 and November 12, 2021.
The initial motion and an amendment thereto were filed November 12, 2021.
6
B. Failure to Comply with California Rules of Court
Sepehry-Fard represents himself in this appeal, as he did at the trial court. As a
party representing himself, Sepehry-Fard “ ‘is entitled to the same, but no greater,
consideration than other litigants and attorneys.’ [Citations.] Accordingly, we may
disregard factual contentions that are not supported by citations to the record [citation] or
are based on information that is outside the record [citation]. [Fn. omitted.] We may
disregard legal arguments that are not supported by citations to legal authority [citation]
or are conclusory [citation]. . . . [W]e will bear in mind that an ‘ “order of the lower court
is presumed correct.” ’ [Citation.] Therefore, [the appellant] has the burden of
affirmatively showing any error. [Citation.]” (Tanguilig v. Valdez (2019) 36
Cal.App.5th 514, 520, rehg. den. (June 18, 2019), review den. (Aug. 21, 2019)
(Tanguilig).)
The Bank contends that this court need not address the substance of Sepehry-
Fard’s appeal, as his opening brief fails to comply with relevant California Rules of
Court, such that he has forfeited any claim of error. In his 93-page appellant’s opening
brief, Sepehry-Fard provides limited citation to the 13 volume clerk’s transcript he
designated in this action. While his brief is not the model of clarity, Sepehry-Fard does
include legal argument and citations. We will exercise our discretion to construe his brief
liberally in an effort to determine the nature of Sepehry-Fard’s complaints but decline to
search the portions of record not cited by Sepehry-Fard in his appellant’s opening brief to
determine if they support his contentions on appeal. (See Schmidlin v. City of Palo Alto
(2007) 157 Cal.App.4th 728, 738.) We will address any insufficiencies in Sepehry-
Fard’s legal arguments in the discussion of the substance of his appeal. With these
precepts in mind, we turn to the merits of Sepehry-Fard’s appeal.
C. The Trial Court Did Not Err in Denying the Motion to Recuse Severson
At the time Sepehry-Fard filed this appeal, the underlying lawsuit had not yet gone
to trial, and the trial court had not yet entered a final judgment. It is clear from the
7
pleadings Sepehry-Fard has filed both here and in the trial court that he believes the trial
court has made numerous errors in handling this case. The only issue we consider in this
opinion is whether or not the trial court erred in denying Sepehry-Fard’s motion to recuse
Severson as counsel for the Bank. In his motion, Sepehry-Fard included arguments
regarding the propriety of the foreclosure and subsequent sale of his property, including
whether or not he received proper notice of the trustee’s sale and concerns about the
Bank’s standing to bring the underlying lawsuit. We will not address these issues in this
opinion except to the extent they are relevant to Sepehry-Fard’s contentions that Severson
should have been recused from representing the Bank in that lawsuit or are otherwise
appropriate for our review.
1. Standard of Review
We generally review a trial court’s decision on a recusal motion for abuse of
discretion, accepting any factual findings that are supported by substantial evidence.
(People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20
Cal.4th 1135, 1143.) “However, the trial court’s discretion is limited by the applicable
legal principles. [Citation.] Thus, where there are no material disputed factual issues, the
appellate court reviews the trial court’s determination as a question of law. [Citation.]”
(Ibid.) In opposing Sepehry-Fard’s recusal motion, Severson did not dispute the facts
alleged therein; it argued that Sepehry-Fard did not cite any legal authority in support of
his request. Thus, we will review the matter de novo, considering the trial court’s
determination as a question of law.
2. The trial court had jurisdiction over Sepehry-Fard and the subject
matter of the lawsuit.
Sepehry-Fard contends that the trial court did not acquire personal jurisdiction
over him and did not have jurisdiction over the subject matter of the lawsuit. He does not
cite legal authority supporting his apparent contention that an alleged lack of jurisdiction
requires the trial court to recuse Severson, and has not demonstrated that the trial court
8
erred in denying the recusal motion on that basis. However, as an appellant may raise
issues of fundamental jurisdiction—that is, jurisdiction over the parties and subject
matter—for the first time on appeal, to the extent Sepehry-Fard generally contends the
trial court did not have fundamental jurisdiction to hear the lawsuit, we will consider that
issue. (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 807; People
v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.)
Sepehry-Fard claims the Bank did not have him properly served with process,
such that the trial court did not acquire personal jurisdiction over him. A party who has
made a general appearance in an action waives a challenge based on lack of personal
jurisdiction. (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 210.) A party makes a
general appearance when he participates in the action or otherwise recognizes the
authority of the court to hear the matter. (Ibid.) Such an appearance cures any defects in
service. (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th
1135, 1145.) “Filing an answer on the merits constitutes a general appearance. (Code
Civ. Proc., § 1014; [citation].)” (Ibid.) Here, Sepehry-Fard filed an answer to the Bank’s
complaint in September 2017. He did not raise a defense based on lack of proper service
or lack of personal jurisdiction over him. Nor does the record on appeal include any
evidence that Sepehry-Fard filed a motion to quash service of the summons prior to
answering, or that he otherwise challenged the trial court’s jurisdiction over him before
generally appearing in the matter.8 The trial court had personal jurisdiction over
Sepehry-Fard and did not err in denying the motion to recuse Severson on this basis.
“ ‘The principle of “subject matter jurisdiction” relates to the inherent authority of
the court involved to deal with the case or matter before it.’ [Citation.] Thus, in the
absence of subject matter jurisdiction, a trial court has no power ‘to hear or determine
8
In January 2019, Sepehry-Fard filed a motion challenging both subject matter
and personal jurisdiction, as well as a motion to dismiss the complaint or quash service of
process. He filed these motions well after making a general appearance in the action.
9
[the] case.’ [Citation.] And any judgment or order rendered by a court lacking subject
matter jurisdiction is ‘void on its face. . . .’ [Citation.]” (Varian Medical Systems, Inc. v.
Delfino (2005) 35 Cal.4th 180, 196.) Relying on the trial court’s May 2018 order
denying the Bank’s motion for summary judgment, Sepehry-Fard bases his contention
that the trial court did not have subject matter jurisdiction on claims that the unverified
complaint filed by the Bank was incomplete and did not prove a claim under Code of
Civil Procedure section 1161a, the statute cited in the complaint.9 Sepehry-Fard does not
cite any legal authority for his apparent contention that the alleged failure to properly
state a cause of action deprived the trial court of subject matter jurisdiction. We are not
aware of any such authority. Nor does Sepehry-Fard cite legal authority indicating that
Severson’s alleged knowledge that the complaint failed to properly state a cause of action
justified granting the motion to recuse the firm as the Bank’s counsel. As already noted,
ante, we need not consider legal arguments that are not supported by citation to legal
authority. (Tanguilig, supra, 36 Cal.App.5th at p. 520.) The record on appeal shows that
the trial court had jurisdiction over the subject matter of the lawsuit, as well as personal
jurisdiction over Sepehry-Fard.
3. Sepehry-Fard did not have standing to seek recusal of Severson.
In order to seek disqualification of counsel, a party must have or have previously
had an attorney-client relationship with the attorney, or some sort of other confidential or
fiduciary relationship. (In re Marriage of Murchison (2016) 245 Cal.App.4th 847, 851
(Murchison); Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347,
1356-1357 (Great Lakes); accord Moreci v. Scaffold Solutions, Inc. (2021) 70
Cal.App.5th 425, 432.10) “[A] moving party must have standing, that is, an invasion of a
9
See fn. 2, ante.
10
The appellate court issued the opinion in Moreci after this case was fully
briefed. As the portion of the opinion cited herein adopts the holdings in Murchison and
Great Lakes, we did not seek supplemental briefing to address the Moreci opinion.
10
legally cognizable interest, to disqualify an attorney.” (Great Lakes, at p. 1357.) A non-
client moving party does not have standing to bring a disqualification motion for the sole
purpose of “ensur[ing] the integrity of the process and the fair administration of justice[]
[citation][,]” as those “ ‘lofty values’ ” do not implicate a “concrete and particularized”
personal right of the non-client. (Id. at p. 1358.) “[I]mposing a standing requirement for
attorney disqualification motions protects against the strategic exploitation of the rules of
ethics and guards against improper use of disqualification as a litigation tactic.
[Citations.]” (Ibid.)
Sepehry-Fard did not allege in his motion to recuse Severson that he has or
previously had an attorney client relationship with the law firm. Nor did he allege
another confidential or fiduciary relationship between himself and Severson. On appeal
Sepehry-Fard does not address the substance of Severson’s contention that he lacked
standing to seek Severson’s recusal from the case, aside from mentioning the argument in
passing. Rather, in his reply brief, Sepehry-Fard cites to what he identifies as six “main
issues” on appeal: his allegation that the Bank does not exist such that Severson cannot
represent the Bank; his claim that Severson is “in contempt of well in excess of a dozen
writs by failing to return the writs;” that Severson is in contempt of an order issued by the
trial court in a prior lawsuit that has since been dismissed; that Severson knew that the
Bank or its predecessors were sending Sepehry-Fard “inconsistent and unauthenticated
amounts of alleged debt allegedly due;” that Severson at minimum knew that Sepehry-
Fard did not receive proper notice regarding the date and time of the trustee’s sale for the
subject property; and, that Severson, despite its knowledge, continues to claim that there
is nothing wrong with their conduct. Sepehry-Fard does not cite to any legal authority
affording him standing to seek recusal of Severson based on any of these allegations.
And the only issue we are considering on appeal is whether or not the trial court erred in
denying the motion to recuse Severson. As we stated at the outset of this opinion, “[w]e
may disregard legal arguments that are not supported by citations to legal authority
11
[citation] or are conclusory [citation]. . . . [W]e will bear in mind that an ‘ “order of the
lower court is presumed correct.” ’ [Citation.] Therefore, [the appellant] has the burden
of affirmatively showing any error. [Citation.]” (Tanguilig, supra, 36 Cal.App.5th at
p. 520.) Sepehry-Fard has not met his burden to show that the trial court erred in denying
the motion to recuse Severson.
III. DISPOSITION
The February 26, 2019 order denying Sepehry-Fard’s motion for recusal of
Severson is affirmed.
12
_______________________________
Greenwood, P. J.
WE CONCUR:
_________________________________
Grover, J.
__________________________________
Lie, J.
U.S. Bank National Association v. Sepehry‐Fard
H047028