Daniels v. Dobalian CA2/3 ( 2020 )

Filed 10/16/20 Daniels v. Dobalian 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
MICHAEL DANIELS, B301001
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC706074)
v.
CYNTHIA L. MILLER DOBALIAN,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory Keosian, Judge. Affirmed.
Michael Daniels, in pro. per., for Plaintiff and Appellant.
Hart King, William R. Hart, Rhonda H. Mehlman and
Kristen L. Erney for Defendant and Respondent.
_________________________
Plaintiff and appellant Michael Daniels (Daniels) appeals a
judgment of dismissal following the grant of a motion for
judgment on the pleadings on his first amended complaint (FAC)
against defendant and respondent Cynthia L. Miller Dobalian
(Dobalian).
Daniels has failed to provide an adequate record for
appellate review, and has failed in his brief to meet his burden to
affirmatively show prejudicial error. Therefore, the judgment is
affirmed.
FACTUAL AND PROCEDURAL BACKGROUND1
Daniels was a defendant in a criminal proceeding brought
against him for driving under the influence (People v. Daniels,
L.A. Super. Ct. No. BA301458.) Dr. Gerald W. Miller (Dr. Miller)
was an expert for the prosecution in that case. Daniels claims he
suffers a loss of liberty due to a false representation made by
Dr. Miller, and Daniels sued Dobalian “as the Legal Heir of
[Dr. Miller’s] Estate.”
In response to the operative FAC, Dobalian filed a motion
for judgment on the pleadings. In an order filed July 25, 2019,
the trial court granted Dobalian’s motion, stating in relevant
part:
“Dobalian moves for judgment against the FAC on the
grounds that (1) the negligence claim is time-barred, (2) the
complaint seeks damages for a witness’s testimony in a criminal
proceeding and as such impermissibly targets privileged conduct,
and (3) a witness testifying in a criminal trial against a criminal
defendant owes no duty of care to the criminal defendant.
1 This summary is gleaned from the extremely limited record
before this court.
2
“Daniels argues that the claim is not time-barred because a
‘hearing to modify the Victim Restitution Hearing will provide
proof of fraud,’ evidently meaning that the delayed discovery rule
will apply under Code of Civil Procedure section 340.5. Daniels
also argues that Miller’s testimony was not privileged, and that
Miller owed a duty to him to testify truthfully under the Sixth
Amendment of the United States Constitution.
“The court finds the FAC is defective beyond remediation
because Miller is immune from tort liability for his testimony,
and also owed no duty to Daniels. The Sixth Amendment to the
United States Constitution imposes a duty on the state to allow
criminal defendants to be confronted with the witnesses against
them; on its face it imposes no duty upon those witnesses such
that they may be liable in tort for their testimony. In fact, a rule
of immunity for such witnesses has a long history in federal law.
[Citation.] The authority that Daniels cites in rebuttal
establishes only that ‘complaining’ witnesses—i.e., ‘those
individuals whose allegations serve to bring about a prosecution’
[citation]—do not enjoy absolute immunity. Yet Daniels does not
contend that Miller was a ‘complaining witness.’
“Accordingly, the Motion for Judgment on the Pleadings is
GRANTED without leave to amend.”
Daniels filed a timely notice of appeal from the judgment of
dismissal.
ISSUES
Given the nature of the proceeding below, the essential
issues presented are whether the trial court erred in granting
judgment on the pleadings, and whether it abused its discretion
in denying leave to amend.
3
DISCUSSION
1. Standard of appellate review.
Like a general demurrer, a motion for judgment on the
pleadings tests the sufficiency of the complaint to state a cause of
action. The court must assume the truth of all factual allegations
in the complaint, along with matters subject to judicial notice.
(Stockton Citizens for Sensible Planning v. City of Stockton (2012)
210 Cal. App. 4th 1484, 1491.) A judgment on the pleadings in
favor of the defendant is appropriate when the complaint fails to
allege facts sufficient to state a cause of action. (York v. City of
Los Angeles (2019) 33 Cal. App. 5th 1178, 1193.) The trial court’s
order granting judgment on the pleadings is subject to this
court’s de novo review. (Ibid.)
The trial court’s decision to grant judgment on the
pleadings without leave to amend is reviewed for an abuse of
discretion, and the appellant has the burden to demonstrate
there is a reasonable possibility the defect in the pleading could
be cured with an amendment. (Schifando v. City of Los Angeles
(2003) 31 Cal. 4th 1074, 1081; Foundation for Taxpayer &
Consumer Rights v. Nextel Communications, Inc. (2006) 143
Cal. App. 4th 131, 135.)
2. Daniels has failed to provide an adequate record for
review.
“Under well-established rules of appellate procedure, . . .
the appellant . . . has the burden to provide an adequate record
on appeal and to affirmatively show error.” (In re Marriage of
Deal (2020) 45 Cal. App. 5th 613, 622; Osgood v. Landon (2005)
127 Cal. App. 4th 425, 435 [“It is the appellant’s affirmative duty
to show error by an adequate record”].) “ ‘Failure to provide an
adequate record on an issue requires that the issue be resolved
4
against [the] appellant. [Citation.]’ [Citation.] This principle
stems from the well-established rule of appellate review that a
judgment or order is presumed correct and the appellant has the
burden of demonstrating prejudicial error.” (Hotels Nevada, LLC
v. L.A. Pacific Center, Inc. (2012) 203 Cal. App. 4th 336, 348
(Hotels Nevada).)
Here, the record does not include a copy of the original
complaint, the operative FAC, Dobalian’s motion for judgment on
the pleadings, Daniels’s opposition papers, or Dobalian’s reply
papers. In that regard, all we have is a one-page excerpt from
Daniels’s pleading, which is attached to his request for judicial
notice as Appendix A, and which shows that Daniels purported to
state a cause of action for general negligence against Dobalian as
Dr. Miller’s “Legal Heir.”
Because Daniels has not provided an adequate record for
appellate review of the judgment on the pleadings, the issue of
the insufficiency of the pleadings must be resolved against him.
(Hotels Nevada, supra, 203 Cal.App.4th at p. 348.)
3. Daniels has not met his burden affirmatively to show
prejudicial error.
Apart from the inadequacy of the appellate record, the
appellant’s opening brief lacks a cognizable legal argument. The
brief fails to explain why the order granting the motion for
judgment on the pleadings was erroneous, or why the denial of
leave to amend constituted an abuse of discretion. Therefore,
those issues have been waived. (Trinkle v. California State
Lottery (2003) 105 Cal. App. 4th 1401, 1413.)
The “cardinal rule” of appellate review is that appealed
judgments and orders are presumed correct (Foust v. San Jose
Construction Co., Inc. (2011) 198 Cal. App. 4th 181, 187), and the
5
burden of affirmatively demonstrating prejudicial error is on the
appellant. (Fundamental Investment etc. Realty Fund v. Gradow
(l994) 28 Cal. App. 4th 966, 971.) Here, even though the trial
court’s order granting judgment on the pleadings is subject to
this court’s de novo review (York v. City of Los Angeles, supra,
33 Cal.App.5th at p. 1193), the standard of review does not
relieve an appellant of the burden of showing prejudicial error.
(Bains v. Moores (2009) 172 Cal. App. 4th 445, 455.) Further, the
appellant’s burden demands more than a mere assertion that the
judgment is wrong because “[i]ssues do not have a life of their
own,” and if issues are not raised or developed with a legal
argument supported by citation to authority, they may be treated
as waived. (Jones v. Superior Court (1994) 26 Cal. App. 4th 92,
99.)
Here, Daniels has failed to brief the relevant legal issues in
connection with the grant of the motion for judgment on the
pleadings without leave to amend, and thus has not met his
appellate burden to show prejudicial error.2
2 Daniels’s arguments concerning a victim restitution
hearing are beyond the scope of this appeal, which arises from his
civil action against Dobalian, and therefore require no discussion.
6
DISPOSITION
Daniels’s request for judicial notice (request filed June 18,
2020) is granted. The judgment of dismissal is affirmed.
Dobalian shall recover her appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
DHANIDINA, J.
7