Filed 11/18/13 Eslami v. Birdie, Inc. CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



NAGHI ESLAMI,                                                       D062683

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2011-00099706-
                                                                                    CU-BT-CTL)
BIRDIE INC., et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of San Diego County, Lorna A.

Alksne, Judge. Affirmed.

         Naghi Eslami, in propria persona, for Plaintiff and Appellant.

         No appearance for Defendants and Respondents.

         Plaintiff Naghi Eslami appeals from a judgment entered in favor of defendants

Birdie Inc. (Birdie) and Taylor Massey after the court sustained the defendants' demurrer

to Eslami's second amended complaint, without leave to amend, because it did not allege

facts sufficient to state a valid cause of action against the defendants. Eslami, appearing
in propria persona, asserts a number of errors in the proceedings below. We affirm the

judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Eslami filed this lawsuit in propria persona, alleging two causes of action

apparently based on Business and Professions Code section 17200 et seq. (Unfair

Competition Law, hereafter UCL). The factual basis for Eslami's complaint is difficult to

discern, as his allegations are confusing and contradictory. In essence, it appears that

Eslami agreed to transfer control of a family of companies with which he had a

preexisting relationship, "Del Mar Cab and Related Companies" (Del Mar Cab), to

Birdie. Eslami would obtain a 50 percent interest in Birdie. Eslami's partner in the

venture would be Massey, who it appears was required to pay $150,000 to either Birdie

(as a new investment) or to Eslami (as consideration for the purchase of Del Mar Cab).

Eslami alleges various wrongs committed by Massey in the course of the venture,

including using corporate funds for personal gain, requiring Eslami to work without pay,

making Eslami and his family personally liable for corporate expenses, firing and failing

to pay a Del Mar Cab employee, and falsely representing in tax returns that Birdie had no

income, among other things.

       Four months later, Eslami filed a first amended complaint (FAC). Again, the FAC

contained two causes of action apparently based on the UCL. The impetus for the filing

of Eslami's FAC is not apparent from the record.

       Birdie and Massey demurred to the FAC and filed a special motion to strike the

FAC under Code of Civil Procedure section 425.16. Neither document is in the record.

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Eslami opposed. The court sustained the demurrer on the grounds that Eslami's FAC

failed to allege facts sufficient to state a cause of action. The court stated, "Defendants

persuasively argue that the FAC is 'indecipherable,' 'vague' and 'hopelessly disjointed,'

and that it is 'impossible to determine . . . what is complained of.' " Because it was

impossible to determine the basis of Eslami's claims, the court denied defendants' special

motion to strike on the grounds that it did not establish that Eslami's claims arose from

petitioning activity. The court also sustained defendants' evidentiary objections to eight

exhibits that Eslami had submitted to the court in connection with his opposition to the

special motion to strike. However, the court granted Eslami leave to amend his

complaint, and it set an expedited briefing schedule for any demurrer or special motion to

strike the new pleading.

       Six days later, Eslami filed his second amended complaint (SAC). In his SAC,

Eslami asserts seven purported causes of action: (1) breach of oral contract, (2) breach of

written contract, (3) breach of the covenant of good faith and fair dealing, (4) fraud,

(5) declaration of constructive trust, (6) request for accounting, and (7) declaratory relief.

These causes of action are based on the same general set of facts that Eslami alleged in

his initial complaint. In particular, Eslami alleged that Birdie and Massey committed the

following "breaches of contract" and "wrongful torts":

          "a. Repeatedly refused to abide by their own promises when dealing
          with Plaintiff;

          "b. Repeatedly denied the existence of their contracts with Plaintiff
          and refused release of copy of agreement;



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          "c. Unfairly prevented Plaintiff from obtaining the plaintiff's account
          receivable, services to the Massey, payments for BIRDIE , payment
          for Massey's 2007 Van Insurance to Cordova Insurance Agency and
          payment to AAA, for Massey with his own request that he will pay
          all;

          "d. Terminated of Del Mar Cab as company under BIRDIE ,
          Defendants for invalid reasons and in a manner that was inconsistent
          with Defendants" legal obligations;

          "e. Refused to comply with the payment obligations to Plaintiff and
          disavowed and interfered with Plaintiff's designation as an officer
          and director of BIRDIE , and;

          "f. Failed and refused to repay money advanced to the Company for
          the benefit of the Defendants, which money was advanced by
          Plaintiff , reasonable reliance on the false representations of the
          Defendants, and each of them." (Irregularities in grammar and
          punctuation in original.)

In the SAC, Eslami's allegations remain disjointed and difficult to understand.

       Birdie and Massey demurred to Eslami's SAC, though their demurrer is again not

part of the record. Eslami opposed. The court sustained the demurrer and again found

that Eslami had not alleged facts sufficient to state any cause of action. The court found

that Eslami's claims for breach of contract and breach of the covenant of good faith and

fair dealing did not adequately allege the existence and terms of any underlying contract,

that Eslami's claim for fraud did not contain sufficient specificity, and that his request for

a constructive trust was vague and conclusory. The court further determined that Eslami

did not allege sufficient grounds for an accounting, or an actual controversy sufficient to

support his request for declaratory relief. Finally, the court found that "Plaintiff has not

shown there is a reasonable possibility he can cure any of the above defects by further

amendment." Eslami then appealed.

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       Although Eslami appealed from the order sustaining defendants' demurrer, and not

the subsequent judgment, the clerk of this court notified the parties that we would

consider the appeal as being from the judgment.

                                        DISCUSSION

                                                I

       Eslami's opening brief in this court is difficult to understand. Large portions are

unintelligible because the sentences are disjointed, the wording is idiosyncratic, and the

few understandable assertions are not bound together by any logical argument. However,

it is clear that the main thrust of Eslami's brief assigns error to the trial court's decision

sustaining defendants' demurrer to his second amended complaint, without leave to

amend.

       On appeal from a judgment dismissing an action after sustaining a demurrer

without leave to amend, the "reviewing court gives the complaint a reasonable

interpretation, and treats the demurrer as admitting all material facts properly pleaded.

[Citations.] The court does not, however, assume the truth of contentions, deductions or

conclusions of law. [Citation] The judgment must be affirmed 'if any one of the several

grounds of demurrer is well taken. [Citations.]' [Citation.] However, it is error for a trial

court to sustain a demurrer when the plaintiff has stated a cause of action under any

possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer

without leave to amend if the plaintiff shows there is a reasonable possibility any defect

identified by the defendant can be cured by amendment." (Aubry v. Tri-City Hospital

Dist. (1992) 2 Cal.4th 962, 967.) "While the decision to sustain or overrule a demurrer is

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a legal ruling subject to de novo review on appeal, the granting of leave to amend

involves an exercise of the trial court's discretion." (Lazar v. Hertz Corp. (1999) 69

Cal.App.4th 1494, 1501.)

       Although defendants have not filed a respondents' brief, we do not treat such a

failure as a "default" or admission of error. We must "independently examine the record

and reverse only if prejudicial error is found." (Kennedy v. Eldridge (2011) 201

Cal.App.4th 1197, 1203; see also Smith v. Smith (2012) 208 Cal.App.4th 1074, 1078.)

The judgment of the trial court is presumed to be correct. (Denham v. Superior Court

(1970) 2 Cal.3d 557, 564.) It is the appellant who bears the burden of overcoming that

presumption. (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645,

1657.) This principle is equally true where the appellate court is required to conduct a de

novo review. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)

                                              II

       We note at the outset that we will address only those arguments that we can

reasonably discern from Eslami's briefing and that are supported by identifiable

argument. "'Appellate briefs must provide argument and legal authority for the positions

taken. "When an appellant fails to raise a point, or asserts it but fails to support it with

reasoned argument and citations to authority, we treat the point as waived."' [Citation.]

'We are not bound to develop appellants' arguments for them. [Citation.] The absence of

cogent legal argument or citation to authority allows this court to treat the contention as

waived.'" (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)

These standards are unchanged where, as here, an appellant appears in propria persona.

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"[S]uch a party is to be treated like any other party and is entitled 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; see also Rappleyea v. Campbell

(1994) 8 Cal.4th 975, 984-985.)

       Eslami appears to contend that the trial court erred in finding that his fraud claim

was pleaded with insufficient specificity. Eslami cites Woods Exploration & Producing

Co. v. Aluminum Co. of America (5th Cir. 1971) 438 F.2d 1286 and claims that it "is

interesting in [its] factual resemblance to the case at bar." We discern no such

resemblance. In Woods, the court considered whether certain oil producers were immune

from antitrust liability for submitting allegedly false forecasts to a governmental

authority. (Id. at pp. 1289-1290.) Woods does not relate in any way to pleading

standards for fraud in California, and it does not assist Eslami in establishing reversible

error by the trial court. We therefore reject Eslami's assignment of error on this ground.

       Eslami also appears to contend that the trial court improperly weighed evidence

and based its decision on "matters which the court stated were beyond the record" when

considering defendants' demurrers. Eslami cites nothing in the record to support his

argument, nor does he offer any legal authority on these points. As such, Eslami has

waived any assignment of error on these grounds. (See Cahill v. San Diego Gas &

Electric Co., supra, 194 Cal.App.4th at p. 956.)

       Eslami's briefing references the UCL extensively, but the import of his arguments

is unclear. Eslami cites several authorities related to the litigation privilege, but it does

not appear that the litigation privilege relates in any way to the trial court's decision to

                                               7
sustain defendants' demurrer. Similarly, Eslami references standing issues and the

distinction between an "act" and a "practice" under the UCL. Eslami does not explain

how these authorities relate to the sufficiency of his pleading. Where Eslami does offer

argument, it does not appear to have any relation to this case. For example, Eslami

writes, "The trial court stated that the UCL requires a 'practice,' that is ongoing wrongful

conduct, envisioning more than a single transaction citing Hewlett v. Squaw Valley Ski

Corp. (1997) 54 Cal.App.4th 499. [Trial Court Order pp. 22-23.]" (Brackets in original.)

Eslami's statement is difficult to understand, since none of the trial court orders in the

record are more than a few pages in length, and we can find no reference to Hewlett in

those orders.

       To the extent Eslami contends that his SAC states a claim under the UCL, we find

this contention unpersuasive. Eslami is entitled on appeal to offer a new legal theory

under which his complaint may be found sufficient. (See Smith v. Commonwealth Land

Title Ins. Co. (1986) 177 Cal.App.3d 625, 630.) However, Eslami's isolated and

confusing arguments regarding litigation privilege, standing, and "practices" under the

UCL do not sustain his burden of showing that he has pleaded sufficient facts to state a

claim under the UCL.

       Alternatively, to the extent Eslami claims error in the trial court's order sustaining

defendants' demurrer to Eslami's FAC (which purported to allege two UCL causes of

action), any claim of error was waived when Eslami chose to amend his complaint rather

than challenge the court's order. (See Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at

p. 966, fn. 2 ["Rather than appealing the trial court's order, [appellant] chose to amend its

                                              8
complaint. By doing so, it waived its right to appeal any error in the sustaining of the

first demurrer."].)1

       Finally, Eslami appears to assert error in the court's decision to set an expedited

briefing schedule on defendants' demurrer to his SAC. During the hearing on defendants'

demurrer to Eslami's FAC, the court explained, "On demurrers, I'm going to try

something new to set them closer, since I've already done the research and spent the time

on them, to give people the closer dates rather than October, I would rather do it. So I'm

short setting it for you. [¶] . . . [¶] So you get your complaint in, and if he wants to file a

demurrer, I'm going to give him an order shortening time to file his demurrer for your

opposition so we can get the pleadings focused and get this case moving." Eslami was

present at the hearing, appearing in propria persona, and did not object to the court's order

expediting briefing. At the hearing, Eslami repeatedly said, "Yes, Your Honor," in

response to the court's comments explaining the expedited briefing schedule. Because

Eslami did not object to the expedited briefing schedule in the trial court, he has forfeited

any claim of error on this ground on appeal. (See Avalos v. Perez (2011) 196



1      A third possibility is that Eslami asserts error in the trial court's consideration of
defendants' special motion to strike his FAC under Code of Civil Procedure section
425.16. Elsewhere in his briefing, Eslami makes references to an alleged irregularity in
oral argument on that motion and to the trial court's allegedly improper exclusion of
certain evidence submitted by Eslami in opposition to that motion. To the extent Eslami
claims errors related to defendants' special motion to strike, we decline to consider them
because the trial court found in Eslami's favor and denied the motion. Eslami may not
challenge such a favorable ruling on appeal. (See Marich v. MGM/UA
Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 431.) Nor has Eslami established
any connection between any alleged errors in the trial court's consideration of defendants'
special motion to strike and the demurrer that is at issue in this appeal.
                                               9
Cal.App.4th 773, 776 ["As a general rule, a claim of error will be deemed to have been

forfeited when a party fails to bring the error to the trial court's attention by timely

motion or objection."].)

       In sum, Eslami has not shown that the trial court erred in sustaining defendants'

demurrer to his SAC for failure to allege facts sufficient to state a valid cause of action,

nor has Eslami demonstrated any other reversible error in the proceedings below.

                                              III

       "[I]t is an abuse of discretion to sustain a demurrer without leave to amend if the

plaintiff shows there is a reasonable possibility any defect identified by the defendant can

be cured by amendment." (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967.)

However, Eslami "must show in what manner he can amend his complaint and how that

amendment will change the legal effect of his pleading." (Goodman v. Kennedy (1976)

18 Cal.3d 335, 349.) Eslami has not done so. Because Eslami has not shown a

reasonable possibility that he can allege facts sufficient to state a cause of action, he has

not established that it was an abuse of discretion to deny leave to amend.

                                       DISPOSITION

       The judgment is affirmed.

                                                                                    NARES, J.
WE CONCUR:


McCONNELL, P. J.


IRION, J.


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