Bidari v. Kelk CA2/5 ( 2016 )

Filed 6/24/16 Bidari v. Kelk 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
TAIMOOR BIDARI, B264953
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SC115503)
v.
AHANG ZARIN KELK et al.,
Defendants;
HAMID MIRSHOJAE,
Intervener and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Lawrence
Cho, Judge. Affirmed.
Miller Barondess, James Goldman and Christopher D. Beatty for Intervener and
Appellant.
Allen Matkins Leck Gamble Mallory & Natsis, Scott J. Leipzig and Kenyon D.
Harbison for Plaintiff and Respondent.
I. INTRODUCTION
Hamid Mirshojae appeals from the May 13, 2015 post judgment orders in Bidari
v. Kelk, case no. SC 115503 (“the lawsuit”) in favor of plaintiff, Taimoor Bidari. At
issue are claims involving defendant, Ahang Mirshojae, Dr. Mirshojae’s former spouse,
who is also sued under the name Ahang Zarin Kelk. The postjudgment orders: denied
Dr. Mirshojae’s motion to intervene in the lawsuit; denied Dr. Mirshojae’s motion to
expunge the recorded pending action notices concerning the property located at 22548
Pacific Coast Highway, unit 304, Malibu, California 90265 (the “property”); and granted
plaintiff’s application for sale of the property to secure payment of his judgment against
Ms. Kelk. On appeal, Dr. Mirshojae does not challenge the rulings denying his motions
to intervene and expunge the pending action notices. His sole contentions on appeal are
the trial court lacked power to order the sale of the property in the absence of an
attachment and plaintiff’s recovery should be limited to $637,826. Because Dr.
Mirshojae was never made a party in the trial court, he cannot raise any issues concerning
the sale or any limits on plaintiff’s recovery. We affirm the orders.
II. PROCEDURAL AND FACTUAL HISTORY
On January 9, 2012, plaintiff filed a complaint against defendant and others. Dr.
Mirshojae is not named in the complaint. On January 12, 2012, plaintiff recorded a
pending action notice. In a first amended complaint, filed July 25, 2012, plaintiff alleges
defendant breached a January 2011 partnership agreement to jointly purchase and own
the property. According to plaintiff, defendant breached the partnership agreement by
taking title to the property on January 20, 2011 in her name as her sole property. On July
25, 2012, another pending action notice was recorded.
The lawsuit was tried in November 2013 and June 2014. Dr. Mirshojae testified in
November 2013. On August 6, 2014, Dr. Mirshojae filed a lawsuit against defendant
relating to their marital settlement agreement. That lawsuit is not before us. On August
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26, 2014, Dr. Mirshojae entered into a stipulated judgment with defendant in the amount
of $1.5 million, an abstract of which he recorded. Quitclaim deeds to the property from
defendant to Dr. Mirshojae were recorded on October 9 and November 3, 2014. A grant
deed from defendant to Dr. Mirshojae was recorded on November 10, 2014.
On November 4, 2014, judgment was entered. The trial court awarded damages to
plaintiff and against defendant in the amount, as amended on January 9, 2015, of
$1,736,406. The trial court granted plaintiff an equitable lien and imposition of a
constructive trust as to an undivided interest in the property. The lien was to secure
payment of the damages imposed by the trial court. The trial court ordered that the lien
relate back to the pending action notices recorded on January 10 and July 25, 2012. The
trial court ordered that the lien remain in effect until the judgment was satisfied.
Defendant appealed the judgment. The appeal was dismissed on June 19, 2015, pursuant
to California Rules of Court, rule 8.140(b).
On April 3, 2015, plaintiff filed an ex parte application for an order to show cause
why the sale of the property should not be ordered. Dr. Mirshojae opposed the order to
show cause. On May 11, 2015, Dr. Mirshojae filed a motion to expunge the pending
action notices. On May 14, 2015, Dr. Mirshojae filed an ex parte motion to intervene
and, as intervenor, to move to expunge the pending action notices.
The postjudgment motions were heard on May 15, 2015. Dr. Mirshojae argued:
the trial court lacked authority to order sale of the property to satisfy the judgment against
defendant; this was because he, not defendant, owned the property, there was no writ of
attachment on the property when defendant transferred it to him; a pending action notice
cannot be used to satisfy a money judgment; and the court trial had no authority to
adjudicate title to the property in the postjudgment proceeding. Concerning the
intervention motion, Dr. Mirshojae contended: a pending action notice expungement
motion may be made after the judgment; if the trial court had authority to order the sale
of the property, then he had standing to move to expunge the pending action notices; and
the proceeds from the sale of the property should not be applied to pay the punitive
damages, interest, costs and fees imposed by the judgment.
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In opposition, plaintiff contended, among other things: Dr. Mirshojae did not have
valid title to the property; this was because the conveyance was fraudulent; and the
conveyance did not have superior title because the constructive trust and equitable lien on
the property set forth in the judgment related back to the filing of the pending action
notices. As to the motion to intervene, the opposition argued: intervention was improper
because it was untimely and was not accompanied by a complaint-in-intervention;
because Dr. Mirshojae was not a party, he could not seek to expunge the pending action
notices; and in any event, plaintiff was seeking to execute on the judgment that imposed
an equitable lien ordered by the trial court, not on the pending action notices. On May
15, 2015, the trial court: granted the motion for order of sale of the property; denied the
motion to expunge the pending action notices; and denied Dr. Mirshojae’s intervention
motion.
On May 27, 2015, Dr. Mirshojae filed a mandate petition with this court. Dr.
Mirshojae contended: the trial court should not have ordered a sale of the property
because defendant did not own it and plaintiff had not obtained a prejudgment attachment
lien on the property; the pending action notices were invalid; the trial court should not
have ordered the sale on the ground of fraudulent transfer; and if the sale order is not
vacated, it should be amended so that plaintiff does not receive an excessive portion of
the proceeds of sale. On June 12, 2015, we denied the petition. (Mirshojae v. Superior
Court (June 12, 2015, B264313) [nonpub. order].) We ruled in part: “The petition is
denied. Petitioner fails to show that the respondent court abused its discretion in denying
his application to intervene. (Code Civ. Proc., § 387, subd. (b); Sutter Health Uninsured
Pricing Cases (2009) 171 Cal.App.4th 495, 513; Lippman v. City of Los Angeles (1991)
234 Cal.App.3d 1630, 1633-[16]34.) Because petitioner did not successfully intervene,
the respondent court properly denied his motion to expunge [the pending action notices].
(Code Civ. Proc., § 405.30 [‘. . . a person who is not a party to the action shall obtain
leave to intervene from a court at or before the time the party brings the motion to
expunge the notice’].) Any challenge to the judgment is properly heard by way of
appeal. To the extent petitioner continues to believe his application to intervene was
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improperly denied, his remedy is to file a timely notice of appeal. (Bame v. City of Del
Mar (2001) 86 Cal.App.4th 1346, 1363.)” (Mirshojae v. Superior Court (June 12, 2015,
B264313) [nonpub. order].)
III. DISCUSSION
Dr. Mirshojae filed a timely notice of appeal but not for the purpose of challenging
the denial of his intervention application. Instead, he again challenges the sale order and
related issues concerning the effect of a pending action notices, substantially repeating
the contentions he made in his unsuccessful mandate petition. We denied the mandate
petition in part, because Dr. Mirshojae did not successfully intervene. Dr. Mirshojae
contends that his failure to intervene does not preclude him from obtaining appellate
review of the sale order. We disagree with the contention.
Only a person who is a party of record in the lawsuit can appeal. (County of
Alameda v. Carleson (1971) 5 Cal.3d 730, 736; Braun v. Brown (1939) 13 Cal.2d 130,
133; Butterfield v. Tietz (1966) 247 Cal.App.2d 483, 484-485.) A proposed intervenor
who is unsuccessful in making herself or himself a party may not appeal from the
judgment and appealable orders. (County of Alameda v. Carleson, supra, 5 Cal.3d at p.
736; Braun v, Brown, supra, 13 Cal.2d at pp. 133-134.) Our Supreme Court has held,
“[T]he only appeal open to an unsuccessful intervener is from the order denying his
motion to intervene[.]” (Id. at p. 133; accord County of Alameda v. Carleson, supra, 5
Cal.3d at p. 736.) Here, Dr. Mirshojae raises no issue concerning the intervention issue.
Hence, any issue concerning the intervention motion ruling is forfeited. (Tiernan v.
Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Johnston
v. Board of Supervisors (1947) 31 Cal.2d 66, 70 disapproved on another point in Bailey v.
County of Los Angeles (1956) 46 Cal.2d 132, 139.) As a result, none of his other
contentions concerning the sale are properly before us.
At oral argument, Dr. Mirshojae argued that these order denying his writ petition
stated that he could appeal under these circumstances. However, as noted, what we
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explained with clarity in our June 12, 2015 order is, “To the extent [Dr. Mirshojae]
continues to believe his application to intervene was improperly denied, his remedy is to
file a timely notice of appeal. (Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346,
1363.)” (Mirshojae v. Superior Court, supra, B264313.) But Dr. Mirshojae has not
properly raised any issue in his briefs concerning the intervention question. (Cal. Rules
of Court, rule 8.204(a)(1)(B); Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th
1052, 1066.) Thus, because Dr. Mirshojae was not a party, he may not challenge the sale
of the property or raise issues concerning the pending action notices.
IV. DISPOSITION
The judgment is affirmed. Plaintiff, Taimoor Bidari, shall recover his appeal costs
from the unsuccessful intervenor, Hamid Mirshojae.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
KRIEGLER, J.
BAKER, J.
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