Filed 3/26/20 Mayflower Capital Co. Profit Sharing Plan v. Patel CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

MAYFLOWER CAPITAL COMPANY PROFIT SHARING PLAN,

Plaintiff and Respondent,

v.

MULJI PATEL,

Defendant and Appellant.

B291066, B292179

(Los Angeles County

Super. Ct. No. GC040256)

APPEAL from a judgment/order of the Superior Court of Los Angeles, Edward B. Moreton, Jr., Judge. Affirmed.

Mulji Patel, in pro. per., for Defendant and Appellant.

Benedon & Serlin, Gerald M. Serlin and Melinda W. Ebelhar for Plaintiff and Respondent.

____________________________

These appeals were consolidated by order of January 13, 2020. The appeals are one in a series of multiple efforts by Appellant Mulji Patel (Patel) to avoid a judgment that was entered against him in 2011. While the opening brief is ambiguous as to whether Patel seeks to overturn (1) the judgment itself, (2) an order directing the sale of his dwelling entered on September 24, 2018, or (3) an order denying his motion to vacate the judgment, he cannot prevail here on any theory.

Whether Patel seeks to overturn the judgment itself or an order for sale of dwelling granted on July 12, 2018, Patel cannot prevail. The time has long past for any appellate review of the judgment, and the July 12 order for sale was superseded by a subsequent order for sale entered September 24, 2018. Patel’s notice of appeal does not extend to the trial court’s order directing the sale of his dwelling. Finally, Patel has failed to demonstrate error in the trial court’s order denying his motion to vacate the judgment. For the reasons discussed below, we agree and affirm.

Plaintiff and Respondent Mayflower Capital Company Profit Sharing Plan (Mayflower) requests the judgment/order(s) below be affirmed.

STATEMENT OF FACTS

The following facts are taken from this court’s decision in Patel I.

“This case apparently arose out of a hammer attack on Nepomuceno by Patel. Patel was convicted and imprisoned as a result of the attack. Nepomuceno sued for damages; Patel denied attacking Nepomuceno and challenged the claimed damages. (Patel v. Superior Court (Mar. 4, 2011, B231006).)

“On July 5, 2011, Nepomuceno obtained a judgment against Patel in the amount of $1,491,839. Patel purported to appeal this judgment on March 1, 2012. We dismissed the appeal as untimely on April 24, 2012. (Nepomuceno v. Patel (Apr. 24, 2012, B239674).)

“Patel filed a petition for writ of mandate/prohibition on August 21, 2014. In it he claimed Nepomuceno committed perjury at trial. We summarily denied the petition. (Patel v. Superior Court (Sep. 26, 2014, B258332).)” (Mayflower Capital Company Profit Sharing Plan v. Patel (Aug. 27, 2019, No. B288872) 2019 WL 4034273, at p.*1, reh’g denied (Sept. 10, 2019).)

Patel I arose from Patel’s appeal of an order for sale of dwelling that was entered on January 31, 2018. (Patel I, supra, 2019 WL 4034273, at p. *1.) That order was affirmed. (Ibid.) However, the January 31 order was superseded when a motion for a subsequent order was granted on June 28, 2018 and later reduced to an order entered on July 12, 2018.

On June 28, 2018, Patel filed a motion to vacate the July 2011 judgement. The motion was denied “as previously denied twice before,” on August 15, 2018.

Patel filed a notice of appeal on July 2, 2018. Patel checked the box at paragraph 1 indicating he was appealing from a “[j]udgment after court trial,” and inserted the June 28, 2018 date that the motion for order of sale was granted. In his motion to augment, Patel indicated he is appealing “from Superior Court Order for sale of dwelling dated July 12, 2018,” and acknowledged there was a “new order for sale of dwelling” that issued on September 24, 2018. In his case information statement filed on August 3, 2018, Patel stated he is appealing from an order entered on June 28, 2018, and attached a copy of the minute order granting the order to sell the dwelling, but not the written order of July 12.

STATEMENT OF APPEALABILITY

Seemingly, Patel’s appeal must be from the August 15, 2018 order denying his motion to vacate the judgment. This order is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2), as an order made after judgment. (See Cal. Rules of Court, rule 8.204(a)(2)(B).)

The appeal cannot be from the judgment after court trial, because the judgment was entered in 2011 and, as this court noted in Patel I, the time has long passed in which to file a viable appeal. (Patel I, supra, 2019 WL 4034273, at p.*1; see Cal. Rules of Court, rule 8.104 [timing for a notice of appeal].)

The appeal cannot be from the September 24, 2018 second amended order for sale of dwelling, despite the second designation of record referencing it, because that order was not entered for more than a month after the notice of appeal was filed. This court has no jurisdiction to review the second amended order as part of this appeal, as it is an order made subsequent to the entry of the August 14, 2018 order denying the motion to vacate and the August 21 notice of appeal. (See Ellis v. Ellis (2015) 235 Cal.App.4th 837, 846; In re Francisco W. (2006) 139 Cal.App.4th 695, 706; Dore v. County of Ventura (1994) 23 Cal.App.4th 320, 323, fn. 2 [“ ‘The appeal reviews the correctness of the judgment or order as of the time of its rendition, leaving later developments to be handled in subsequent litigation’ ”].)

STANDARD OF REVIEW

Patel’s motion to vacate was brought pursuant to Code of Civil Procedure section 473, subdivision (b) which states that a court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment of dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

Section 473 requires that a motion to vacate pursuant to subdivision (b) must be brought no later than six months after the judgment was taken. The time is jurisdictional. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Where there is no dispute over the evidence, determination of jurisdiction is a matter of law, and therefore subject to de novo review. (Robbins v. Foothill Nissan (1994) 22 Cal.App.4th 1769, 1774; Radar v. Keeler (1933) 129 Cal.App. 114, 119.)

Assuming no jurisdictional issue, a motion to vacate under section 473, subdivision (b) is addressed to the sound discretion of the trial court. An appellant must make a clear showing of abuse to overturn an order on the merits. (Lint v. Chisholm (1981) 121 Cal.App.3d 615, 619–620; accord, In re Marriage of Eben–King & King (2000) 80 Cal.App.4th 92, 118 [“The standard for appellate review of an order denying a motion to set aside under section 473 is quite limited. A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice”].)

DISCUSSION

A. Patel’s Opening Brief Fails to Establish Reversible Error
B.
1. Patel’s opening brief omits essential information necessary for appellate review
2.
The California Rules of Court require an appellant’s opening brief to “[s]tate the nature of the action, the relief sought in the trial court, and the judgment or order appealed from,” and to provide a “summary of the significant facts limited to matters in the record.” (Cal. Rules of Court, rule 8.204(a)(2).) Further, appellants are required to set forth all the material evidence on a particular point, not merely their own evidence or evidence that is beneficial only to their case. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman).)

The opening brief does not cite to the appellate record or provide any coherent statement of the case or procedural history. Patel’s failure to adhere to the rudimentary requirements on appeal mandate the forfeiture of his claims of any error by the trial court. (Foreman, supra, 3 Cal.3d at p. 881; In re S.C. (2006) 138 Cal.App.4th 396, 402.)

3. The opening brief is unsupported by analysis or legal authority
4.
Patel’s opening brief fails to support legal arguments with appropriate analysis that applies legal authority to the facts of the case. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [“Each brief must . . . [s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority”]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115–1116.)

“An appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685.) The reviewing court may disregard issues not properly addressed in the briefs and treat them as having been abandoned or waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.) “ ‘[E]very brief should contain a legal argument with citation of authorities on the points made.’ ” (Ibid.) It is not the responsibility of this court to develop appellant’s arguments. (Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 80.)

Patel’s opening brief does no more than repeat the allegations he made in Patel I: that the order for sale was forged, and that Mayflower’s predecessor inflated or lied about his medical bills at trial. It does not articulate any pertinent or intelligible legal argument. The opening brief does not cite to any judicial authority suggesting that grounds exist for reversing the judgment. Patel’s failure to present any citation to judicial authority justifying the appeal makes it impossible for Mayflower to know exactly what it is that he is claiming as the legal basis for his appeal, leaving one to conclude that none exists.

With respect to Patel’s claim that the order for sale of dwelling was forged by the trial court, Patel cites nothing in the record to support the claim, cites no legal authority, and provides no legal analysis to demonstrate a basis for reversing the order. Additionally, he cites nothing in the record to show that he raised this claim in the trial court. “ ‘As a general rule an appellate court will consider only such points as were raised in the trial court, and this rule precludes a party from asserting, on appeal, claims to relief not asserted or asked for in the court below.’ ” (Cinnamon Square Shopping Center v. Meadowlark Enterprises (1994) 24 Cal.App.4th 1837, 1844.)

The same is true for Patel’s allegations of “inflated” medical bills. Even if the sufficiency of the evidence underlying the original judgment were at issue in this appeal, which it is not, it is beyond the province of this court to reweigh the evidence presented in the trial court. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

C. The Trial Court Correctly Denied the Motion to Vacate
D.
The trial court correctly denied the motion to vacate for at least two reasons. First, the court had no jurisdiction to entertain the motion, as more than six months had passed from the entry of the judgment. Second, Patel proffered no grounds justifying overturning the judgment.

Patel specifically brought his motion to vacate pursuant to section 473, subdivision (b). Such a motion must be brought within six months after the date of entry of the challenged order or else the trial court has no jurisdiction to entertain it. “Once six months have elapsed since the entry of a judgment, a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) Patel makes no contention the judgment against him is void on its face. Accordingly, the trial court did not err in denying the motion to vacate.

Second, Patel’s allegations of impropriety regarding the medical bills presented at trial by Nepomuceno cannot serve to vacate a judgment now more than nine years old. Even on direct appeal from the judgment, it would be beyond the province of this court to reweigh the evidence presented in the trial court. (In re Marriage of Mix, supra, 14 Cal.3d at p. 614.) Moreover, whether Nepomuceno paid his own medical bills or they were paid by insurance (as Patel claims), pursuant to the collateral source rule Nepomuceno was still entitled to claim them as an item of damages so long as they were actually paid. (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 6 [“if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor”]; Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 551 [recoverable medical damages limited to amounts actually paid by plaintiff or her insured].)

During oral argument, Patel claimed he was unable to speak English; however the court has reviewed the recording of the oral argument in Mayflower v. Patel (Patel I, B288872) from June 26, 2019, during which Patel did not request an interpreter and spoke in perfectly understandable English.

DISPOSITION

The orders are affirmed. Respondent Mayflower is entitled to its costs on appeal.

NOT TO BE PUBLISHED.

WHITE, J.*

We concur:

ROTHSCHILD, P. J.

BENDIX, J.