Ebrahimi v. Bank of Am.

1

VAHID EBRAHIMI, Plaintiff and Appellant, v. BANK OF AMERICA, N.A., Defendant and Respondent.

H050487

California Court of Appeals, Sixth District

October 27, 2023

NOT TO BE PUBLISHED

(Santa Cruz County Super. Ct. No. 21CV02406)

MEMORANDUM OPINION ^[1]

Greenwood, P. J.

The trial court issued terminating sanctions against appellant Vahid Ebrahimi after he failed to appear at deposition and ordered the dismissal of his complaint against respondent Bank of America, N.A. (BANA).^[2] After the court denied Ebrahimi's motion to set aside the dismissal, the court entered judgment in favor of BANA. Ebrahimi, representing himself here as he did in the trial court, timely appeals from the judgment.

He contends that he suffered a medical emergency that precluded him from participating in the deposition. He argues that the trial court erred in granting terminating sanctions on an ex parte basis, and abused its discretion when it denied his motion to set aside the dismissal.

We must affirm the judgment because Ebrahimi did not provide us with an adequate appellate record. We are required to presume that the trial court's decision is correct. Ebrahimi has the burden to affirmatively show error based on the record presented to this court. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson); Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 563.) If an appellant fails to provide a sufficient record for review we will affirm the judgment based on the presumption of correctness. (Jameson, at p. 609; Stasz v Eisenberg (2010) 190 Cal.App.4th 1032, 1039.) This principle extends to an appellate record containing only the portions of the trial record on which an appellant's arguments are based, while ignoring or omitting other portions of the trial record that may provide grounds for affirmance. (Jade Fashion &Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 644; Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)

Ebrahimi first argues that the trial court afforded BANA an unfair advantage ex parte, resulting in the dismissal of the action. In his opening brief, Ebrahimi references two ex parte applications filed by BANA, one that was heard on March 18 2022, and a second heard on March 28, 2022. He claims that BANA's ex parte applications did not meet the requirements of California Rules of Court, rule 3.1202(c) ("An applicant [seeking ex parte relief] must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte."). He argues that the applications could have been heard as regular noticed motions, and that there was no evidence of irreparable harm or immediate danger to BANA that necessitated an ex parte proceeding. Ebrahimi did not designate either of these applications to be included in the clerk's transcript prepared for this appeal.

In its respondent's brief, BANA pointed out that Ebrahimi failed to include the two referenced ex parte applications, and asked this court to affirm the judgment on the grounds that the record is inadequate for review. While Ebrahimi attached additional pleadings to his reply brief (see discussion at fn. 4, post), he did not include the two subject ex parte applications, stating, "In order to stay within the limited page count for Reply Briefs, some of the requested documents were left out. For those documents that are too lengthy to be included I have summarized the main points and how they relate to the case on appeal." He further alleges that the "March 17, 2022 ex parte application . . . is not directly associated with the matters for which [he is] appealing." We cannot accept his summary of the "main points" in lieu of properly including the pleadings in the record on appeal. Without the ex parte applications, we cannot make an independent determination of whether the trial court erred in granting the relief requested by BANA, and thus must presume that the trial court's order for terminating sanctions and dismissal of the action was correct.^[3] (Jameson, supra, 5 Cal.5th at p. 609.)

Ebrahimi similarly failed to provide a sufficient record for this court to review his contention that the trial court abused its discretion in denying the motion to set aside the dismissal, which he filed on June 13, 2022 (the June 2022 motion). He designated only his moving pleadings and the minute order denying the June 2022 motion. Ebrahimi concedes in his opening brief that the June 2022 motion was not his first attempt to vacate the order dismissing the action. He initially moved to set aside the order in April 2022 (the April 2022 motion), but did not include the pleadings related to that motion when he designated the record in this appeal. After BANA complained about the paucity of the record in its respondent's brief, Ebrahimi provided with his reply brief a June 6, 2022 minute order denying the April 2022 motion.^[4] However, he did not include with his reply the April 2022 motion, or any of the pleadings BANA filed in response.

The April 2022 motion is relevant to the review of the subsequent order denying Ebrahimi's June 2022 set aside motion. Based on the information available to this court, the April 2022 motion sought set aside of the dismissal on the same grounds as set forth in the June 2022 motion. Thus, the June 2022 motion effectively served as a motion for reconsideration of the June 6, 2022 order under Code of Civil Procedure section 1008, subdivision (a), or a renewed motion to set aside under section 1008, subdivision (b).^[5] In order to determine whether the trial court erred in denying the motion, this court has to consider whether Ebrahimi demonstrated "new or different facts, circumstances, or law" to support his request for reconsideration or renewal of the motion. (§ 1008, subd. (a), (b).)

Ebrahimi elected to proceed without an oral record of the hearing on his June 2022 motion.^[6] The minute order from the hearing indicates that the trial court issued a tentative ruling prior to the hearing, and adopted the tentative ruling after receiving no notice of opposition to the ruling. The tentative ruling is not part of the record on appeal, nor is any written order the court issued after the hearing. Ebrahimi did appear at the hearing. The minute order does not indicate whether the court heard any argument prior to denying the motion. Nor does it state the basis for denying the motion, aside from referencing the posted tentative ruling.

As we do not have an oral record of the proceedings, we presume the trial court denied the June 2022 motion based on a finding that Ebrahimi did not demonstrate "new or different facts, circumstances, or law" under section 1008 subdivisions (a) or (b). Without knowing the facts, circumstances, and law cited in Ebrahimi's April 2022 motions, we cannot determine whether the trial court abused its discretion in doing so. (See Wilson v. The La Jolla Group (2021) 61 Cal.App.5th 897, 921 [abuse of discretion is the...