Pacific Attorney Group v. Akbari CA2/8 ( 2024 )

Filed 10/11/24 Pacific Attorney Group v. Akbari CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
PACIFIC ATTORNEY GROUP, B330988
PLC, et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. 22STCV04535)
v.
GAWAD AKBARI et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Michael P. Linfield, Judge. Affirmed.
Pacific Attorney Group and Michael P. Hollomon, Jr., for
Plaintiffs and Appellants.
No appearance for Defendants and Respondents.
_________________________________
Appellants ask that we reverse the trial court’s order
dismissing their case with prejudice. The trial court dismissed
their case because the court concluded that appellants did not
comply with the requirements for seeking a default judgment.
Because we have an insufficient record to evaluate the appeal,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-appellants Pacific Attorney Group, PLC, and
Payam Mark Shayani (Plaintiffs) do not cite to the record in
recounting the facts in their opening brief. Respondents did not
file any brief, and consequently, Plaintiffs filed no reply brief.
In addition, the record on appeal is 36 pages and does not include
Plaintiffs’ filings related to their attempts to obtain a default
judgment, the primary basis for the trial court’s order dismissing
their case. This thin record precludes us from meaningfully
recounting the facts.
While we do not have a sufficient record to establish the
relevant facts, we provide the facts we ascertain from the docket
for some context.
On February 4, 2022, Plaintiffs filed their complaint
against Defendants Ali Akbari, Gawad Akbari, Sajad Akbari, and
Nazdup, Inc. On April 1, 2022, Plaintiffs filed a notice of
settlement. Three days later, the trial court set an order to show
cause regarding dismissal and settlement, and set the hearing for
May 19, 2022. On May 19, 2022, the court vacated the hearing
date for the order to show cause, and set a case management
conference for July 5, 2022. On July 5, 2022, the trial court
issued an order to show cause why Plaintiffs should not be
sanctioned for failing to appear at the case management
conference and for failing to file a proof of service. The court also
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set a status conference for August 5, 2022. On August 5, 2022,
the court continued the case management conference to
October 5, 2022, and the court vacated its order to show cause.
On October 5, 2022, the trial court continued the case
management conference to October 26, 2022. The court also set
an order to show cause regarding entry of default for the same
date. On October 27, 2022, the trial court again set another case
management conference and set an order to show cause
regarding entry of default for December 12, 2022. On December
12, 2022, the court set new dates for a case management
conference and an order to show cause regarding entry of default
judgment to March 13, 2023. On March 13, 2023, the trial court
continued the order to show cause regarding entry of default
judgement to May 10, 2023. On May 10, 2023, the trial court
appeared to conduct a hearing regarding entry of default
judgment as the record includes a minute order from the hearing.
On May 10, 2023, the trial court issued a minute order, and later
issued a nunc pro tunc minute order. The corrected order
provides, “The Court previously stated that ‘If default judgment
is not entered by [today’s] date, the Court WILL dismiss the case.’
[¶] Plaintiff’s Prove-Up Package is deficient, and hence the Court
cannot enter default judgment. [¶] The case is Dismissed with
prejudice.” According to the minute order, the trial court took
this action because Plaintiffs “continually” failed to complete case
management statements prior to hearings, had requests for entry
of default rejected “at least” four times, failed to file their default
“prove-up package” prior to the December 12, 2022 hearing, and
then filed a deficient “prove-up package” for the May 10, 2023
hearing.
Plaintiffs appealed.
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DISCUSSION
A trial court may, under certain circumstances, invoke its
limited, inherent discretionary power to dismiss claims with
prejudice. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915.)
Among other bases, a trial court can dismiss a claim if the
plaintiff has failed to diligently prosecute its case. (Ibid.)
We review discretionary dismissals for abuse of discretion.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) The complaining
party has the burden of establishing an abuse of discretion.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
A judgment or order from a trial court is presumed correct
on appeal. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
An appellant must affirmatively prove error. (Ibid.) Similarly,
an appellant has the burden of providing an adequate record to
the appellate court. (Foust v. San Jose Construction Co., Inc.
(2011) 198 Cal.App.4th 181, 187.) As a result, “if the record is
inadequate for meaningful review, the appellant defaults and the
decision of the trial court should be affirmed.” (Ibid.)
As an initial matter, Plaintiffs have appealed from an order
dismissing their suit with prejudice, and they had not secured a
judgment prior to filing their appeal. Nonetheless, because the
order disposes of all claims in the case, we amend the nunc pro
tunc order dismissing the case with prejudice to be a judgment of
dismissal. (Estate of Dito (2011) 198 Cal.App.4th 791, 800
[treating an order sustaining a demurrer as an appealable
order].) In the interests of judicial economy, we address the
merits of the appeal. (Ibid.)
Here, Plaintiffs argue that the trial court abused its
discretion by imposing terminating sanctions and dismissing
their case with prejudice. Plaintiffs further argue that any
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omissions in the default package were minor and that the trial
court should have allowed them an opportunity to cure any
deficiencies.
We, however, have an insufficient record to evaluate
Plaintiffs’ argument. Plaintiffs designated a total of 36 pages in
their appellate record. The record consists of the trial court
docket, the trial court’s initial order dismissing the case with
prejudice, the nunc pro tunc order dismissing the case with
prejudice, the notice of appeal, and the notice designating the
record on appeal. Because we have a deficient record, we cannot
meaningfully review the trial court’s ruling. (Foust v. San Jose
Construction Co., Inc., supra, 198 Cal.App.4th at p. 187.) For
example, we have no way of evaluating Plaintiffs’ default package
because the default package is not in the appellate record. Nor
are we able to discern what happened at the hearings preceding
the May 10, 2023 hearing, as the record does not include these
minute orders. We assume the trial court’s ruling is correct, and
nothing in this appeal establishes otherwise. (Denham v.
Superior Court, supra, 2 Cal.3d at p. 564.)
DISPOSITION
The judgment is affirmed. No costs are awarded.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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