Filed 10/23/17 Capital One v. Sepehry-Fard CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
| CAPITAL ONE, N.A., et al.,
Plaintiffs and Respondents,
v.
FAREED SEPEHRY-FARD,
Defendant and Appellant.
| H043531 (Santa Clara County Super. Ct. No. 1-15-CV-286835)
|
Fareed Sepehry-Fard, defendant in the underlying action brought by Capital One, N.A. and Greenpoint Mortgage Funding, Inc., seeks appellate review of an order denying his motion to disqualify the judge presiding over the case and to “voir dire” the other judges on the Santa Clara County Superior Court. As none of the issues raised in appellant’s brief amounts to a viable challenge to the ruling, we will uphold the order.
Background
Our understanding of the factual and procedural history of this case is limited by the documents appellant has chosen to include in his appendix on appeal. Plaintiffs’ complaint is not among those documents. According to the summary provided by plaintiffs in their opposition to appellant’s demurrer, they filed their complaint in response to “Fraudulent Filing Statements” in which appellant falsely claimed to be a secured creditor of plaintiffs with a lien against plaintiffs’ assets. The first cause of action was for declaratory relief, alleging that there was a controversy between the parties as to whether the filing statements were valid. The second cause of action alleged a violation of section 9625 of the California Uniform Commercial Code based on the alleged fraudulent filing statements, thus entitling plaintiffs to damages and injunctive relief. Plaintiffs also sought an adjudication of appellant as a vexatious litigant, noting the multiple unsuccessful lawsuits appellant had brought against these plaintiffs and other lenders.
Appellant demurred to the complaint, but on March 17, 2016, the superior court overruled it. Meanwhile, appellant filed his answer on March 8, 2016, along with a motion to strike the complaint. Those pleadings, however, were struck by the court on March 29, 2016, because appellant had not paid the requisite court fees.
On April 4, 2016, appellant filed the motions from which this appeal arises, a “Demand for Substitution with Cause pursuant to Code of Civil Procedure section 170.3(c)(5) and Motion to Voir Dire Judge Zayner and Other Judges before the Commission on Judicial Performance or Another Venue.” A month earlier, in his March 1, 2016 objection to the tentative ruling on the demurrer, appellant had demanded disqualification of The Honorable Theodore C. Zayner as well as disclosure by any judge, present or retired, of the source of his or her salary and pension benefits, to the extent that the judge had adjudicated any “debt collection and foreclosure cases” within the last five years. In the April 4 motion, appellant demanded substitution of Judge Zayner because he had not responded to the disclosure demand. On this occasion appellant asserted that because of their “inherent financial conflict of interest,” Judge Zayner and the other judges of the Santa Clara County Superior Court “must attend a Public hearing before the [C]ommission on [J]udicial [P]erformance or another venue . . . to answer specific financial related questions which they failed to respond [sic] pursuant to the su[bp]oena issued on them on March 1, 2016 and are in contempt of court.” Appellant believed that all court employees participated in a benefit system that was invested in “mortgage and asset backed securities, other bank and financial products tied to mortgage and asset backed securities.” Consequently, both the judges in this country (including appellate court justices) and the attorneys representing “pretender lenders” were all “debt collectors and part of the same conspiracy and criminal racket.” All had “consistently terrorized this nation and are financial terrorists who have committed these heinous crimes against the people of this country and the people of the world due to the trickling effects these financial crimes have on the international community as a whole.”
On April 11, 2016, Judge Zayner struck appellant’s statement of disqualification and summarily denied the motion to voir dire judges. The court found that “[t]he purported fact that a public employee pension system invests in products supported by banking institutions does not constitute a disqualifying ‘financial interest’ under applicable law. (See Code of Civ. Proc. §§ 170.1, subd. (a)(3), 170.5, subd. (b).).” After rejecting appellant’s further indefensible suggestion that an adverse ruling was ground for disqualification, Judge Zayner was unable to find a comprehensible articulation of a legally sufficient basis on which he should be disqualified. As for the motion to voir dire the judges, the court ruled that it was “not authorized by law and otherwise was not noticed.” Appellant filed his notice of appeal four days later.
Discussion[1]
Although appellant’s notice of appeal indicated that he was seeking review of both the March 29, 2016 order striking his answer and the April 11, 2016 order, his Civil Case Information Statement listed only the April 11 order as the subject of his appeal.[2] We will presume that appellant no longer is challenging the March 29 order striking his answer and motion to strike, and to the extent that any of appellant’s arguments can be interpreted as pertaining to that nonappealable order, we will not address it. Thus, only the April 11, 2016 order is before us.
The appeal, however, suffers from a fatal defect. A claim that the trial court erred in striking a motion to disqualify is not cognizable on appeal; it may be reviewed only by a writ of mandate, which must be sought within 10 days after service to parties of notice of the decision. (Code of Civ. Proc. § 170.3, subd. (d); People v. Panah (2005) 35 Cal.4th 395, 444.)[3] We have discretion, however, to construe the appeal as a petition for writ of mandate and thereby reach the merits. (See, e.g., Olson v. Cory (1983) 35 Cal.3d 390, 401 [in “unusual circumstances” reviewing court may treat the purported appeal as a petition for writ of mandate]; see also In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 404.) We elect to do so here in order to provide prompt resolution of the disqualification issue.
Nevertheless, none of appellant’s assignments of judicial error can succeed. Notably, most of his contentions have nothing to do with the April 11, 2016 order.[4] Appellant argues the following: (1) the lower court had a mandatory duty to stay the case because he had filed for Chapter 13 bankruptcy;[5] (2) because of the bankruptcy filing, the lower court lacked jurisdiction to strike appellant’s answer and motion to strike the complaint in its order on March 29, 2016; (3) appellant is a “Secured Party Creditor” who has been “wronged” by plaintiffs and who, by virtue of a notice of rescission, has a “non‑judicial judgment” under the Truth in Lending Act (15 U.S.C. § 1635, et seq.); (4) the attorneys representing plaintiffs are disqualified from any proceedings to collect a securitized debt or they will be “in criminal violation of Business and Professional [sic] Code [section] 6129.” ; (5) the court erred and acted without subject matter jurisdiction by setting aside his “non judicial notarized judgment”; and (6) because his property is part of a Mexican “Land Patent” grant protected by “International Treaty Law,” it cannot be foreclosed on or “liened on, and if someone attempts to do that, they are in criminal violation of Treaty between our country and REPUBLIC OF MEXICO, and THAT action would also be declaration of war on Sovereign REPUBLIC OF MEXICO, in criminal violation of international Treaty Laws. . . .” In appellant’s view, “International Treaty Law” protects him from any claims, and even from local property taxes. Although he is the defendant in this action,[6] appellant repeatedly demands a “remedy” for the wrongs that he insists were inflicted on him by plaintiffs. He alternately requests summary judgment, an injunction, and $9 million in damages.
Buried in one of these arguments is the only assertion that even touches on the disqualification ruling by Judge Zayner. Citing an inapposite United States Supreme Court decision from 1909 affirming the denial of habeas corpus relief to an arrested fugitive based on an affidavit before a notary public (Compton v. State of Alabama (1909) 214 U.S. 1, 8), appellant claims that Judge Zayner “was and is bribed and therefore could not have been and was not an impartial arbitrator.” However, nothing in the record supports this brazen assertion of criminal conduct; appellant refers us to nothing but the order itself. Having offered neither established facts nor legal authority on which to base a finding of error, appellant is not entitled to relief from the order striking his statement of disqualification and denying his motion to voir dire the superior court judges.
Disposition
The appeal from the April 11, 2016 order is deemed to be a petition for writ of mandate, and the petition is denied.
_________________________________
ELIA, J.
WE CONCUR:
_______________________________
RUSHING, P. J.
_______________________________
PREMO, J.
[1] In a supplement to his Case Information Statement, appellant attached a Notice of Stay of Proceedings, indicating that as of February 29, 2016 he was in Chapter 13 bankruptcy proceedings in the federal district court. We take judicial notice of the active database from that court, which indicates that appellant was dismissed as a debtor on May 4, 2016, and the case was terminated on October 17, 2016. No stay of this appeal is therefore required.
[2] A prior appeal challenging the March 29, 2016 order was dismissed as taken from a nonappealable order. (Capital One, N.A. et al. v. Sepehry-Fard, H043464.)
[3] Code of Civil Procedure section 170.3, subdivision (d) states, in pertinent part: “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.”
[4] Appellant has submitted a voluminous set of documents of which he asks this court to take judicial notice. One of them, a document rejected by the superior court clerk as having been submitted to the wrong court, is dated after the events culminating in the April 11, 2016 order. The other documents have nothing to do with the claims of the plaintiffs or the issues germane to the April 11 order. We therefore deny appellant’s motion.
[5] This contention pertains to the order overruling appellant’s demurrer, in which the court noted that the plaintiffs’ claims “concern Defendant’s allegedly fraudulent and frivolous lawsuits and UCC financial statements, not his assets.” Appellant does not appear to have sought writ review of this ruling.
[6] Defendant at times refers to himself as a cross-complainant, but we can find no cross-complaint in the appendix he has provided.
