Radical Studios v. Virk CA2/3

Filed 5/8/23 Radical Studios v. Virk 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
RADICAL STUDIOS, INC., B316278
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. SC129304
v.
KAVI VIRK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Mark H. Epstein, Judge. Affirmed.
Matthew I. Berger Law Group and Matthew Ira Berger
for Plaintiff and Respondent.
Kavi Virk, in pro. per., for Defendant and Appellant.
_________________________
The trial court entered default judgment against Kavi Virk
and his company, KSV, LLC, after they failed to answer Radical
Studios, Inc.’s complaint. On appeal, Virk argues the court
lacked jurisdiction over KSV, the judgment conflicts with three
other small claims cases, and the Honorable Mark H. Epstein
was disqualified for bias and improper ex parte communications.
We reject his arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Radical Studios, Inc. (Radical Studios) entered into a
written contract with Kavi Virk and his company, KSV, LLC
(KSV), in 2013. Under the terms of the agreement, Radical
Studios agreed to pay Virk and KSV $10,000 for business
development services related to the production of a movie called
“Abattoir.” The parties’ relationship quickly soured, however,
and Radical Studios attempted to terminate the contract.
Virk filed a small claims case against Radical Studios
in 2015, alleging it had breached the parties’ contract. Radical
Studios failed to appear at trial, and the court entered judgment
against it for $5,000. The court subsequently denied Radical
Studios’s motion to vacate the judgment on the ground that it
had never received notice. Radical Studios then filed a petition
for writ of mandate in this court, which we summarily denied.
Virk filed a second small claims case against Radical
Studios in 2017, this time alleging he was entitled to additional
credits and fees related to Abattoir. The court awarded Virk
nominal damages of $1 plus one percent of Abattoir’s net
proceeds, if any.
In 2018, Radical Studios filed a lawsuit against Virk and
KSV for, among other things, abuse of process, breach of contract,
and intentional interference with prospective economic
2
advantage. The operative complaint alleged Virk failed to
perform under the parties’ contract, pursued frivolous claims
against Radical Studios, and erroneously claimed he was entitled
to credit and fees related to another movie called “Aladdin.”
Radical Studios sought a declaration that it timely terminated
the parties’ contract, it owed nothing further to Virk under the
contract, and it owed nothing to Virk in connection with Aladdin.
Radical Studios also sought more than $2 million in damages.
Virk demurred, apparently on the basis that the dispute
was subject to binding mediation and arbitration under a clause
in the parties’ contract. On September 18, 2018, the court
overruled the demurrer, explaining it could not decide the
arbitration issue at this stage of the case because Radical Studios
had not attached the contract to the operative complaint. The
court noted that Virk could raise the issue again in a motion
to compel arbitration, and it ordered him to file an answer within
20 days.
About a week later, on September 24, 2018, Virk filed an
ex parte application to reconsider the demurrer ruling. The court
denied the application, noting that Virk could pursue a properly
filed and served motion. Virk responded by filing a motion
for reconsideration under Code of Civil Procedure section 1008,1
which was set to be heard in December 2018. He argued
reconsideration was warranted because Radical Studios had
attached the parties’ contract to the complaint it had served
on him.
1 Undesignated statutory references are to the Code of Civil
Procedure.
3
Virk failed to file an answer within 20 days of the court’s
decision overruling his demurrer. Accordingly, on October 25,
2018, the court entered default against him.
The next month, Virk filed a motion to set aside the
default. The court denied the motion on the basis that Virk had
failed to support it with factual evidence, identify any mistake,
inadvertence, surprise, or excusable neglect warranting relief, or
attach an answer, as required under section 473, subdivision (b).
Virk moved for reconsideration, which the court also
denied. The court, however, gave Virk additional time to file
“any legally appropriate and proper briefs.” The court noted that,
if Virk did not file a new motion to set aside default, it would set
a default prove-up hearing.
Virk failed to file a new motion to set aside default, and
the court held a default prove-up hearing in March 2021. Virk
appeared at the hearing, but the court did not let him participate.
The court took the matter under submission at the end of the
hearing.
A few days after the hearing, Virk filed a new small claims
action against Radical Studios. Although not entirely clear,
it appears Virk alleged Radical Studios had breached a second
agreement between the parties related to Aladdin. The small
claims court continued the trial in that case pending the outcome
of this case.
The court announced its ruling on June 18, 2021 in a
detailed minute order. The court determined Radical Studios
was entitled to around $75,000 in damages related to Virk’s
unsuccessful actions against it, including litigation over his
repeated refusal to accept payment of a judgment in one of the
small claims cases. The court also found Radical Studios was
4
entitled to an injunction preventing Virk from disseminating
confidential information, and a declaration of the parties’ rights
under their Abattoir contract. The court, however, rejected
Radical Studios’s contention that Virk had no rights to Abattoir,
noting the small claims court had found that he did. It also
refused to award Radical Studios the fees it had incurred
defending itself in the small claims actions in which Virk
had been successful.
About a month later, Virk filed another motion to set aside
default. The court denied the motion on August 3, 2021, on
the basis that it was untimely, lacked supporting evidence, and
did not include an answer. The court found “Virk’s actions here
are not the result of inadvertence or inexperience. The actions
are deliberate and tactical. He has made inappropriate filings
designed to defer and delay judgment. At this point, the
day of reckoning has finally arrived. The default will not be
vacated . . . .”
The court entered judgment the same day. The judgment
declares the parties’ contract terminated in May 2013, the parties
did not have a contract related to Aladdin, and Radical Studios
did not owe Virk anything related to Aladdin. The judgment also
declared the parties have no further obligations to one another,
and Radical Studios does not owe Virk additional money or
credits, except any obligations flowing from the judgment in
the 2017 small claims case.
Virk timely appealed.
DISCUSSION
1. Virk’s appellate briefing is deficient
While we are mindful Virk is representing himself on
appeal, he “is to be treated like any other party and is entitled
5
to the same, but no greater consideration than other litigants
and attorneys.” (Barton v. New United Motor Manufacturing,
Inc. (1996) 43 Cal.App.4th 1200, 1210.) Thus, he is bound to
follow the most fundamental rule of appellate review: the
judgment or order challenged on appeal is presumed to be correct,
and “it is the appellant’s burden to affirmatively demonstrate
error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
To demonstrate error, an appellant “must present meaningful
legal analysis supported by citations to authority and citations
to facts in the record that support the claim of error.” (In re S.C.
(2006) 138 Cal.App.4th 396, 408.) A reviewing court will not
search the record to ascertain whether it supports the appellant’s
arguments, nor will it make the appellant’s arguments for him.
(Inyo Citizens for Better Planning v. Inyo County Bd. of
Supervisors (2009) 180 Cal.App.4th 1, 14.)
Here, Virk’s briefing is wholly inadequate to meet his
burden of demonstrating error. His statement of facts is roughly
ten pages long, but eight of those pages are simply a list of
documents filed in this case and one of the small claims cases.
Virk’s argument section fares no better. It consists of four
paragraphs of disjointed argument, followed by 24 pages that
Virk appears to have copied and pasted from declarations and
briefs he filed in the trial court. Making matters worse, Virk
fails to cite a single relevant case or statute to support any
of his arguments.
Where, as here, an appellant fails to support his arguments
with meaningful analysis, citations to the record, and relevant
authority, we may treat the issues as waived. (Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784–785 (Badie).) Although
this alone provides a sufficient basis to deny Virk’s appeal and
6
affirm the judgment, we will nevertheless address the merits of
his arguments, to the extent we can decipher them.2
2. Virk has not shown the court lacked jurisdiction
over KSV
Virk asserts that, because KSV had been dissolved before
Radical Studios filed the lawsuit, it could not receive service
and the court did not have jurisdiction over it. Contrary to
Virk’s contentions, under Corporations Code section 2010, a
“corporation which is dissolved nevertheless continues to exist
for the purpose of . . . prosecuting and defending actions by or
against it . . . .” (Corp. Code, § 2010, subd. (a).) Causes of action
against a dissolved corporation may be enforced against the
dissolved corporation to the extent of its undistributed assets.
(Id., § 2011, subd. (a)(1)(A).) A plaintiff, moreover, may sue the
dissolved corporation “by delivering a copy [of the document]
to an officer, director, or person having charge of its assets or,
if no such person can be found, to any agent upon whom process
might be served at the time of dissolution.” (Id., § 2011, subd.
(b).) Given this clear authority, we reject Virk’s argument that,
because KSV had been dissolved, it could not be served and
was not subject to the court’s jurisdiction.
2 We have limited our discussion to the points Virk states
under a separate heading or subheading summarizing the point,
as required by the Rules of Court. (See Cal. Rules of Court,
rule 8.204(a)(1)(B).) To the extent Virk purports to raise other
issues on appeal, we consider them waived and decline to
consider them. (See Badie, supra, 67 Cal.App.4th at pp. 784–785;
Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th
1826, 1830, fn. 4 [the failure to “head an argument” as required
under the Rules of Court “constitutes a waiver”].)
7
3. The judgment does not overrule the judgments
in the small claims cases
Virk contends the trial court erroneously “overrule[d]”
the prior judgments in the small claims cases he filed against
Radical Studios in 2015 and 2017. He fails, however, to identify
any specific provisions in the judgment that are inconsistent
with the prior judgments. Although all three cases involved
similar issues—mainly, the parties’ contract related to Abattoir
—the judgment in this case explicitly states it does not affect
“any obligation [Radical Studios has to Virk] flowing from the
judgment entered in the [2017] Small Claims Action . . . .” Nor
is there anything in the judgment that appears to conflict with
the judgment in the 2015 small claims case. Because Virk fails
to identify any inconsistencies with the prior judgments, he has
not met his burden of showing error.
We similarly reject Virk’s suggestion that the trial court
improperly interfered with the small claims case that he filed
in 2021. While it appears the two cases involve similar parties
and issues, Virk overlooks that he filed the small claims case
several years after Radical Studios filed this case and after
it was apparent the trial court was going to rule against him.
Accordingly, there is no merit to his contention that the court in
this case improperly interfered with the 2021 small claims case.
4. Virk has not shown Judge Epstein was disqualified
Virk contends the Honorable Mark Epstein—who entered
judgment and denied many of Virk’s motions—should have
disqualified himself from the case due to bias and improper
ex-parte communications.
8
a. Background
In August 2021, Virk filed a request to disqualify Judge
Epstein under section 170.1, subdivision (a)(6) on the basis that
the judge had demonstrated bias, hatred, and vitriol toward him.
According to Virk, Judge Epstein had improperly “overrule[d]
all the previous judges,” exercised jurisdiction “to rule against
a non-existent entity,” and had taken a “ ‘sledge-hammer’ ”
to Virk’s constitutional rights by issuing a “bizarre, unlawful
‘biblical’ ruling not rooted in facts or logic . . . .”
In support of his motion, Virk submitted negative reviews
of Judge Epstein from an online forum called The Robing Room.
Virk also submitted emails from an attorney who was assisting
Virk in the case and had appeared at a hearing on his behalf.
According to the emails—which were heavily redacted—Judge
Epstein told the attorney Virk had been in his court frequently
and the judge had “long run out of patience with” him. The
attorney also wrote that Judge Epstein was “pissed” at Virk, and
the attorney did not want to become “embroiled” in the matter
“given the vitriol the judge expressed today.” Virk submitted
a declaration from the attorney authenticating the emails; the
attorney, however, did not address the contents of the emails.
Judge Epstein struck the statement of disqualification,
finding it did not state legal grounds for disqualification for
cause. The judge also submitted a declaration stating he was
not prejudiced or biased against any party or counsel, and
he knew of no facts or circumstances that would require his
disqualification or recusal.
b. Analysis
Under section 170.1, a judge shall be disqualified if a
“person aware of the facts might reasonably entertain a doubt
9
that the judge would be able to be impartial.” (§ 170.1, subd.
(a)(6)(A)(iii).) If a judge who should be disqualified refuses to do
so, “any party may file with the clerk a written verified statement
objecting to the hearing or trial before the judge and setting forth
the facts constituting the grounds for disqualification of the
judge.” (§ 170.3, subd. (c)(1).) “When reviewing a charge of bias,
‘. . . the litigants’ necessarily partisan views should not provide
the applicable frame of reference. [Citations.]’ [Citation.]
Potential bias and prejudice must clearly be established.”
(Roitz v. Coldwell Banker Residential Brokerage Co. (1998)
62 Cal.App.4th 716, 724.)
Virk’s disqualification arguments fail for several reasons.
First, he has not provided a sufficient record for review. On
appeal, “ ‘[a]ll intendments and presumptions are indulged
to support [the judgment or order] on matters as to which
the record is silent, and error must be affirmatively shown.’ ”
(Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d
557, 564 (Denham).) To overcome this presumption, an appellant
must provide a record that allows for meaningful review of
the challenged order. (Foust v. San Jose Construction Co., Inc.
(2011) 198 Cal.App.4th 181, 187.)
Here, Virk did not designate for inclusion in the appellate
record any documents related to his request for disqualification.
Instead, he simply attached the relevant documents to his
opening brief. Under rule 8.204(d) of the California Rules of
Court, a party may attach exhibits to an appellate brief, but the
exhibits must already be in the appellate record. Because Virk
did not designate the exhibits attached to his brief for inclusion
in the appellate record, we may not consider them. Without
those documents, we must presume the record supports the
10
court’s decision. (Denham, supra, 2 Cal.3d at p. 564.) Virk,
therefore, has not met his burden of showing error.
Virk’s arguments fail for another, more fundamental
reason. Section 170.3, subdivision (d), provides the
“determination of the question of the disqualification of a judge
is not an appealable order and may be reviewed only by a writ of
mandate from the appropriate court of appeal sought only by the
parties to the proceeding. The petition for the writ shall be filed
and served within 10 days after service of written notice of entry
of the court’s order determining the question of disqualification.”
In effect, “section 170.3, subdivision (d) ‘forecloses appeal of a
claim that a statutory motion for disqualification authorized by
section 170.1 was erroneously denied, and this preclusion applies
even when the statutory basis for the motion appears to codify
due process grounds for challenging the impartiality of a judge.’ ”
(Roth v. Parker (1997) 57 Cal.App.4th 542, 548.) Virk’s
arguments related to his request to disqualify Judge Epstein
under section 170.1, therefore, are not cognizable on appeal.
Even if the disqualification issue were properly before us
and we could consider the exhibits attached to Virk’s brief, we
would nevertheless reject his arguments on the merits. Contrary
to Virk’s suggestions, the fact that Judge Epstein consistently
ruled against him does not indicate bias and is not a ground
for disqualification. (See Brown v. American Bicycle Group, LLC
(2014) 224 Cal.App.4th 665, 674 [“The mere fact that the trial
court issued rulings adverse to [the party] on several matters
in this case, even assuming one or more of those rulings were
erroneous, does not indicate an appearance of bias, much less
demonstrate actual bias.”].) Nor are the emails from Virk’s
attorney sufficient to require disqualification. Although the
11
attorney authenticated the emails in a declaration, he did not
attest to the truth of their contents. The emails, therefore,
are inadmissible hearsay. (See Evid. Code, § 1200.) The
same is true of the critical reviews of Judge Epstein posted
to The Robing Room.
Virk also has not shown that Judge Epstein engaged in
improper ex parte communications. Although far from clear,
Virk’s argument appears to be premised on an email from Radical
Studios’s counsel to the clerk of Judge Epstein’s courtroom.
Counsel attached to the email a declaration and a highlighted
copy of a declaratory judgment, purportedly “[i]n compliance with
Judge Epstein’s instructions.” Counsel also sent the email and
attachments to Virk. The email, therefore, is not an ex parte
communication and does not provide grounds for disqualification.
(See Nguyen v. Superior Court (2007) 150 Cal.App.4th 1006,
1013, fn. 2 [“An ex parte communication is one where a party
communicates to the court outside of the presence of the other
party.”].)
5. We deny Radical Studios’s request for sanctions
In its respondent’s brief, Radical Studios requests we
sanction Virk for filing a frivolous appeal. Under rule 8.276
of the Rules of Court, a Court of Appeal may impose sanctions
on a party for taking a frivolous appeal or appealing solely to
cause delay. (Cal. Rules of Court, rule 8.276(a)(1).) The party
requesting sanctions must do so in a separate motion; it is not
enough to make the request in a respondent’s brief. (Symmonds
v. Mahoney (2019) 31 Cal.App.5th 1096, 1114.) Radical Studios
has not complied with this requirement. Accordingly, we deny
its request.
12
DISPOSITION
The judgment is affirmed. Radical Studios, Inc. shall
recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
NGUYEN (KIM), J.
 Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
13