Filed 7/14/20 Masajedian v. Kim CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIMAALSADAT MASAJEDIAN,

Plaintiff and Appellant,

v.

ERIC C. KIM et al.,

Defendants and Respondents.

B300440

(Los Angeles County

Super. Ct. No. BC648338)

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark V. Mooney, Judge. Affirmed.

Simaalsadat Masajedian, in pro. per., for Plaintiff and Appellant.

Leal Trejo and Arturo N. Fierro for Defendants and Respondents.

______________________________

In a rambling and largely unintelligible brief, plaintiff and appellant Simaalsadat Masajedian challenges a judgment entered in favor of defendants and respondents Eric C. Kim, Los Angeles Community College District (LACCD), Kimberly Carpenter, and Marian Ruane following the trial court’s order granting defendants’ motion for summary judgment.

We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. The operative pleading

In January 2017, plaintiff initiated this action against defendants. At some point early in the litigation, the case was assigned to the Honorable Michelle Williams Court.

The operative pleading is the first amended complaint, filed on December 15, 2017. It alleges four causes of action against defendants: three claims for promissory estoppel arising out of violations of the Civil Code and certain Codes of Regulation, and one claim of civil conspiracy. Her claims primarily arise out of the theory that Los Angeles Southwest College, one of the component colleges in the LACCD, inappropriately put “NGG (None Grade Given) as grade. NGG is not defined in Cal State list of possible grade[s] and nobody in the United State[s] of America or other countries could recognize this grade.” The alleged wrongful conduct occurred in 2014.

II. Defendants’ demurrer

At some early point in the litigation, defendants demurred to one or more of plaintiff’s pleadings. According to plaintiff’s opening brief on appeal, defendants demurred to the first amended complaint and the trial court overruled it.

III. Defendants’ motion for summary judgment

On August 22, 2018, defendants filed and served upon plaintiff a motion for summary judgment. They argued, inter alia, that: (1) Plaintiff’s claims were time-barred. Her alleged injuries accrued in 2014. Pursuant to Government Code section 911.2, she had either six months or one year to bring a claim against defendants. Because she did not file her statutorily-required governmental claim until July 2016, her claims were time-barred. (2) Plaintiff had no evidence to support her claims for promissory estoppel. (3) Plaintiff’s conspiracy cause of action failed because it is a theory of liability, not a cause of action. It was set for hearing on November 14, 2018.

IV. Plaintiff’s serial challenges to judicial officers

While defendants’ motion for summary judgment was pending, the case was reassigned to Judge Joanne B. O’Donnell; plaintiff filed a challenge to Judge O’Donnell pursuant to Code of Civil Procedure section 170.6. Judge O’Donnell accepted the peremptory challenge, and the case was reassigned to Judge Richard E. Rico. Judge Rico recused himself after review of the case pursuant to section 170.1, and the case was reassigned to Judge Mark V. Mooney. On November 20, 2018, plaintiff filed a section 170.6 challenge to Judge Mooney. Judge Mooney rejected plaintiff’s challenge on the grounds that she had already filed one.

Approximately two weeks later, plaintiff filed another section 170.6 challenge, arguing that Judge Mooney had misinterpreted the peremptory challenge statute and that she could file as many challenges as she desired. The trial court denied this challenge as well.

V. Plaintiff’s opposition to defendants’ motion for summary judgment

Meanwhile, on November 13, 2018, plaintiff filed an opposition to defendants’ motion for summary judgment. In addition, she filed an opposition to defendants’ separate statement that largely accuses defendants and their counsel of “lie[s]” and “fake allegation[s].” The opposing separate statement was not filed in the two-column format specified by California Rules of Court, rule 3.1350(f).

VI. Defendants’ motion for summary judgment is recalendared On March 29, 2019, defendants refiled and served their motion for summary judgment; it was set for June 18, 2019.

VII. Trial court’s order granting summary judgment

After entertaining oral argument and taking the matter under submission, the trial court granted defendants’ motion for summary judgment. It found all of plaintiff’s claims against defendants untimely. In addition, regarding plaintiff’s causes of action for promissory estoppel, the trial court determined: “Defendants have met their burden in demonstrating that there was no clear promise, reliance on the promise or any injury as a result of that reliance. Plaintiff has failed to submit any evidence to create a triable issue of material fact. The promissory estoppel claims fail not only against the entity defendant, but the individual defendants as well.” Moreover, plaintiff’s conspiracy cause of action failed because “[c]onspiracy is not a stand-alone cause of action, but a legal doctrine to extend liability on persons who share with the immediate tortfeasors a common plan or design in its perpetration. The promissory estoppel claims each having failed, there can be no claim for conspiracy.”

VIII. Plaintiff’s third peremptory challenge to Judge Mooney

On July 15, 2019, plaintiff filed another section 170.6 challenge to Judge Mooney, “with exhibits [it] is approximately 500 pages long.” Judge Mooney struck it, reasoning: “Since the statement of disqualification on its face discloses no legal grounds for disqualification, it is ordered stricken.”

IX. Judgment; plaintiff’s challenge to the judgment; appeal

Judgment in favor of defendants and against plaintiff was entered on July 17, 2019.

On August 9, 2019, plaintiff filed an ex parte application to “clear the case situation,” arguing that Judge Mooney had been disqualified and had no authority to rule on defendants’ motion for summary judgment. The trial court denied plaintiff’s ex parte application.

One week later, plaintiff filed what was essentially the same ex parte application. And again, the trial court denied it.

Plaintiff’s timely appeal ensued.

DISCUSSION

The major problem with plaintiff’s appeal lies in her opening brief. As another court observed in describing a similarly inadequate brief, “[i]ndeed, this document is strongly reminiscent of those magazine puzzles of yesteryear where the reader was challenged to ‘guess what is wrong with this picture.’” (People v. Dougherty (1982) 138 Cal.App.3d 278, 280.)

It is well-established that a trial court judgment is “‘presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

Plaintiff has not overcome this burden. Issues are raised that are not thoroughly fleshed out or supported by record citations and/or legal authority. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant bears the burden of supporting a point with reasoned argument]; County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 [appellant must present argument on each point made]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [appellate court is not required to make an independent, unassisted search of the appellate record].) We decline to consider the issues raised in plaintiff’s opening brief that are not properly presented or sufficiently developed to be cognizable, and we treat them as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; In re David L. (1991) 234 Cal.App.3d 1655, 1661; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545–546.) Plaintiff’s election to act as her own attorney on appeal does not entitle her to any leniency as to the rules of practice and procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985; Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.)

With these principals in mind, and ignoring the hyperbole and tone of plaintiff’s appellate briefs, we have attempted to address the merits of the issues raised by plaintiff.

I. Standard of review

“We review a grant of summary judgment de novo, considering ‘“all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence.”’ [Citation.] ‘In independently reviewing a motion for summary judgment, we apply the same three-step analysis used by the superior court. We identify the issues framed by the pleadings, determine whether the moving party has negated the opponent’s claims, and determine whether the opposition has demonstrated the existence of a triable, material factual issue.’ [Citation.]” (Granadino v. Wells Fargo Bank (2015) 236 Cal.App.4th 411, 415.)

“The general rule is that summary judgment is appropriate where ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . . ’ [Citation.] A defendant ‘moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.’ [Citation.] The moving defendant may meet this burden either by showing that one or more elements of a cause of action cannot be established or by showing that there is a complete defense thereto. [Citations.] ‘“[A]ll that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action . . . [;] the defendant need not himself conclusively negate any such element . . . .” [Citation.]’ [Citation.] Once the moving party’s burden is met, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. [Citation.] The plaintiff must produce ‘“substantial’” responsive evidence sufficient to establish a triable issue of fact. [Citation.] ‘[R]esponsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact.’ [Citation.]” (Granadino v. Wells Fargo Bank, N.A., supra, 236 Cal.App.4th at p. 415.)

In reviewing an order granting summary judgment, we strictly scrutinize the moving party’s papers (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 549, overruled in part on other grounds by Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1245), and liberally construe the declarations of the party opposing summary judgment to determine the existence of triable issues of fact. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1556.) All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. (Ibid.)

II. The trial court properly granted defendants’ motion for summary judgment

The trial court properly granted defendants’ motion for summary judgment.

As the trial court rightly found, all of plaintiff’s claims are time-barred. Government Code section 911.2, subdivision (a), provides, in relevant part: “A claim relating to a cause of action for . . . injury to person . . . shall be presented . . . not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented . . . not later than one year after the accrual of the cause of action.” Here, plaintiff’s claims accrued in 2014. But she did not file her government claim until July 2016, more than one year later. It follows that her action is time-barred.

Even if her lawsuit had been timely, plaintiff failed to raise a triable issue of material fact to defeat defendants’ motion. As set forth above, the operative pleading alleges claims for promissory estoppel based upon alleged statutory violations and conspiracy. “The elements of promissory estoppel are (1) a promisee, (2) the promisor should reasonably expect the promise to induce action or forbearance on the part of the promisee or a third person, (3) the promise induces action or forbearance by the promise or a third person (which we refer to as detrimental reliance), and (4) injustice can be avoided only by enforcement of the promise. [Citations.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 803.)

Here, plaintiff did not present any evidence in support of her claims for promissory estoppel. There is no evidence as to what promises were made to her, who made those alleged promises, and how she relied upon those promises.

It follows that plaintiff’s claim for civil conspiracy also fails. “Civil conspiracy is not an independent cause of action. [Citations.] Instead, it is a theory of co-equal legal liability under which certain defendants may be held liable for ‘an independent civil wrong’ [citations] committed by others. A participant in the conspiracy ‘effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy.’ [Citation.] ‘“‘The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design. . . . In such an action the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.’”’ [Citation.] ‘“The essence of the claim is that it is merely a mechanism for imposing vicarious liability . . . . Each member of the conspiracy becomes liable for all acts done by others pursuant to the conspiracy, and for all damages caused thereby.”’ [Citation.] [¶] Under a conspiracy theory of recovery, liability depends on the actual commission of a tort. [Citations.]” (Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1291.)

As set forth above, plaintiff did not overcome defendants’ demonstration that she has no claim for promissory estoppel. Absent an underlying tort, her claim for conspiracy fails as a matter of law.

Urging us to reverse, plaintiff seems to set forth four primary arguments.

First, plaintiff asserts that the trial judge had no authority to rule on defendants’ motion because he had been recused and/or disqualified prior to the time of the hearing on defendants’ motion for summary judgment. The problem with plaintiff’s argument is that Judge Mooney was never “recused.” While plaintiff did file several challenges to Judge Mooney, the trial court properly struck them.

Section 170.6, subdivision (a)(4), provides that “no party or attorney shall be permitted to make more than one . . . motion [to disqualify a judge] in any one action.” (See also Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1322 [“except in certain circumstances not applicable here, only one peremptory challenge motion is allowed in a case”].)

When plaintiff filed her first peremptory challenge to Judge Mooney, she had already filed at least one section 170.6 challenge. It follows that Judge Mooney properly denied all of plaintiff’s peremptory challenges to him.

Second, plaintiff argues that defendants’ motion should have been stricken because it was based upon falsehoods and lies. As set forth above, a party opposing summary judgment must set forth substantial evidence to create a triable issue of material fact. (Granadino v. Wells Fargo Bank, N.A., supra, 236 Cal.App.4th at p. 415.) Plaintiff’s self-serving assertion that defendants’ evidence is “fake” is insufficient. (See, e.g., Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 636 [trial court cannot deny summary judgment simply to allow the opposing party to test credibility], overruled in part on other grounds in First Student Cases (2018) 5 Cal.5th 1026, 1038; Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161 [speculation and conjecture are insufficient to create a triable issue of material fact].)

Third, plaintiff asserts that we should ignore the arguments raised in the motion for summary judgment because they are identical to those raised in defendants’ demurrer, which was overruled. Plaintiff is mistaken. “Even had the issues in the demurrer been identical to the later summary [judgment] motion, . . . summary judgment/adjudication motions are law and motion proceedings entirely distinct from an attack on a pleading by demurrer. Therefore, it was proper for the trial court to decide the . . . claim[s] on summary [judgment] differently from its prior disposition of the claim[s] on demurrer. [Citation.]” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 634, fn. 10.)

In a similar vein, plaintiff contends that Judge Mooney’s findings contradict earlier findings made by prior judges in this case. Again, relying upon the representations in plaintiff’s appellate briefs, those findings were apparently made in connection with the ruling on defendants’ demurrer, and the trial court was not bound to deny summary judgment simply because a prior judge in the case overruled defendants’ demurrer.

Finally, plaintiff appears to level procedural objections to defendants’ motion and supporting papers. As for her objection to the separate statement, which does not appear to have been raised below, it lacks merit. Defendants’ separate statement complies with section 437c, subdivision (b)(1), and California Rules of Court, rule 3.1350(d) and (h). The separate statement did not need to be divided by cause of action because defendants sought summary judgment, not summary adjudication. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.)

As for her apparent evidentiary objections, because they do not seem to have been raised below, they are forfeited on appeal. (§ 437c, subd. (b)(5) [“Evidentiary objections not made at the hearing shall be deemed waived”]; Evid. Code, § 353, subd. (a) [failure to object, even to otherwise inadmissible evidence, waives the defect].) To the extent plaintiff suggests that defendants were required to submit all discovery exchanged by the parties and/or the entire transcripts of all depositions in conjunction with their motion for summary judgment, she is mistaken. Section 437c, subdivision (b)(1), requires that a moving party submit all of its evidence in support of the motion; the statute does not require the moving party to submit copies of discovery exchanged prior to the filing of the motion.

As for her assertion that the motion was untimely, we are not convinced. She claims that the motion for summary judgment was not filed at least 75 days before the date of the hearing. She is mistaken. Defendants first filed and served their motion for summary judgment on August 22, 2018, and the motion was set for November 14, 2018, more than 75 days later. Defendants’ original notice complied with section 437c, subdivision (a)(2).

Even if we consider defendants’ motion renoticed after the case was reassigned to Judge Mooney, it also complied with section 437c, subdivision (a)(2). Defendants refiled and served it on March 29, 2019, with a hearing date of June 18, 2019, more than 75 days later.

DISPOSITION

The judgment is affirmed. Defendants are entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.

HOFFSTADT