Elamin v. Shimek Properties CA1/1 ( 2024 )

Filed 10/16/24 Elamin v. Shimek Properties CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
GREGORY ELAMIN,
Plaintiff and Appellant, A170110
v. (San Francisco City & County
SHIMEK PROPERTIES, LLC et al., Super. Ct. No. CGC-20-587312)
Defendants and Respondents.
MEMORANDUM OPINION1
Gregory Elamin, appearing propria persona, appeals from the dismissal
of his action for failure to comply with court orders pursuant to Government
Code section 68608, subdivision (b).2 We affirm.
In October 2020, Elamin filed a complaint for damages and restitution
with 12 causes of actions against Shimek Properties, LLC, Roy Shimek, and
three other individuals. The following month, Elamin filed an amended
complaint with two additional causes of action. Elamin attempted to
This appeal may be resolved by memorandum opinion pursuant to
1
California Standards of Judicial Administration, section 8.1.
This section provides in relevant part: “Judges shall have all the
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powers to impose sanctions authorized by law, including the power to dismiss
actions . . . , if it appears that less severe sanctions would not be effective
after taking into account the effect of previous sanctions or previous lack of
compliance in the case.” (Gov. Code, § 68608, subd. (b).)
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personally serve Shimek Properties, LLC, and Roy Shimek (collectively,
Shimek). Shimek, appearing specially, moved to quash service of the
summons. The trial court granted the motion, noting there was no opposition
and no appearances at the hearing. Afterwards, Elamin filed a motion to
vacate the order, which the court denied.
In January 2022, Elamin filed a notice of appeal from the trial court’s
order granting the motion to quash (case No. A164467). This court dismissed
the appeal because Elamin failed to file a brief, and a remittitur followed.
Eight months later, in September, the trial court scheduled a case
management conference for January 2023. The court later canceled the
scheduled conference and issued an order to show cause (OSC), directing
Elamin to explain why his action should not be dismissed or sanctions
imposed for failure to file proofs of service on defendants and obtain answers
or enter defaults as to the first amended complaint.
In July, Elamin failed to appear at the OSC hearing and the trial court
sanctioned him $400 for not appearing. The court continued the hearing
three additional times. Each time, Elamin failed to appear. And each time,
the court imposed sanctions for his failure to appear.
In February 2024, when Elamin failed to appear at the OSC hearing a
fourth time, the trial court entered an order dismissing the entire action
pursuant to Government Code section 68608, subdivision (b), finding no good
cause or substantial justification for Elamin’s failure to comply with the
previous court orders and that a less severe sanction would not be effective
due to his history of noncompliance. Elamin appeals the dismissal order.
We review an order dismissing an action for abuse of discretion.
(Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 765,
disapproved on another point in City of Los Angeles v.
2
PricewaterhouseCoopers, LLP (2024) 17 Cal.5th 46, fn. 5.) “[I]t is a
fundamental principle of appellate procedure that a trial court judgment is
ordinarily presumed to be correct and the burden is on an appellant to
demonstrate, on the basis of the record presented to the appellate court, that
the trial court committed an error that justifies reversal of the judgment.”
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) “ ‘[T]o demonstrate error,
an appellant must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record.’ ” (Hernandez v. First
Student, Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez).)
We first observe that Elamin spends a significant portion of his opening
brief attacking the trial court’s order granting the motion to quash service.
However, Elamin’s prior appeal—challenging that order—was dismissed
after he failed to file an opening brief. As a result, that order became final
and binding on Elamin since the dismissal of his appeal did not expressly
state it was made without prejudice. (Code Civ. Proc., § 913; see Property
Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005)
132 Cal.App.4th 666, 677.) Accordingly, Elamin cannot now challenge the
merits of the order granting the motion to quash and we disregard his
arguments challenging that order. (See Clemente v. State of California (1985)
40 Cal.3d 202, 211–212.)
With respect to the dismissal order triggered by Elamin’s fourth failure
to appear at the OSC hearing, his briefing is not a model of clarity.3 He
seems to argue the dismissal violated his due process rights and suggests the
court had no jurisdiction to dismiss the case. Although Elamin cites to some
statutes and case law in his briefing, he does not adequately explain how
these legal authorities support a conclusion that the trial court abused its
3 No respondent’s brief, and in turn no reply brief, was filed.
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discretion. “When an issue is unsupported by pertinent or cognizable legal
argument it may be deemed abandoned and discussion by the reviewing court
is unnecessary.” (Landry v. Berryessa Union School Dist. (1995)
39 Cal.App.4th 691, 699–700.) In short, Elamin’s briefing makes it
impossible to evaluate his arguments, and it is not our “ ‘role to construct
theories or arguments that would undermine the judgment and defeat the
presumption of correctness.’ ” (Dilbert v. Newsom (2024) 101 Cal.App.5th
317, 323 (Dilbert); see Hernandez, supra, 37 Cal.App.5th at p. 277 [a
reviewing court is not obliged to make arguments for appellant or speculate
about which issues they intended to raise].)
While we recognize Elamin is self-represented, he is not excused from
the rules governing the appellate process. (See Dilbert, supra,
101 Cal.App.5th at p. 323.) A party proceeding in propria persona must be
treated like any other party and follow the same procedural rules as an
attorney. (Ibid.) Given that Elamin has not made any intelligible or legally
supported argument that the trial court abused its discretion in imposing
terminating sanctions, we must conclude he has failed to carry his burden on
appeal.
DISPOSITION
The order dismissing Elamin’s first amended complaint is affirmed.
The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule
8.278(a)(5).)
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_________________________
Banke, J.
We concur:
_________________________
Humes, P. J.
_________________________
Langhorne Wilson, J.
A170110, Elamin v. Shimek Properties, LLC
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