Memon v. Schultz

















Filed 5/17/13
Memon v. Schultz CA5















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


>

NOOR MOHAMED MEMON, Plaintiff and Appellant, v. PETER M. SCHULTZ et al., Defendants and Respondents.

F063473 (Super. Ct. No. 10C0385) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Kings County. Edward M. Ross, Judge.

Noor M.
Memon, in pro. per., for Plaintiff and Appellant.

Nelson
& Rozier and Jeffery S. Nelson for Defendants and Respondents Lemoore
Police Department and Jeff Law.

Weakley
& Arendt, James J. Arendt and Michelle E. Sassano for Defendant and
Respondent Ronald Calhoun.

Laurence
Meyer, in pro. per., for Defendant and Respondent Laurence Meyer.



-ooOoo-

Appellant,
Noor Mohamed Memon, filed a complaint for fraud against multiple defendants
including respondents, the Lemoore Police Department, Lemoore Chief of Police
Jeff Law, District Attorney Ronald Calhoun, and defense attorney Laurence
Meyer. Appellant alleged that the
defendants committed fraud in convicting his son, Jonathon Dugan, of href="http://www.fearnotlaw.com/">criminal charges and sending Dugan to
prison. Appellant requested that Dugan’s
conviction be overturned, all of Dugan’s records be sealed, and that all civil
and constitutional rights be restored to Dugan.

Through
demurrers, respondents argued the complaint should be dismissed for various
reasons, including that: the complaint
was barred by the statute of limitations; appellant did not have an actual and
substantial interest in the subject matter of the action; and appellant did not
comply with the Government Claims Act.
In addition to his demurrer, Meyer filed a special href="http://www.mcmillanlaw.com/">motion to strike the complaint. (Code Civ. Proc., § 425.16.)

The trial
court sustained the demurrers without leave to amend and granted Meyer’s
motion. Appellant has provided neither
argument nor citation to relevant authority regarding why these orders should
be reversed. Moreover, respondents’
demurrers were properly sustained.
Accordingly, the judgment will be affirmed.

DISCUSSION

Appellant
contends that the trial court’s orders should be reversed. However, appellant’s opening brief contains
neither an intelligible legal argument
nor any citations to relevant authority as are required to support his
contention. (Kensington University v. Council for Private Postsecondary etc.
Education (1997) 54 Cal.App.4th 27, 42-43.) Thus, appellant has not met his burden of
demonstrating that the trial court erred.

Moreover,
appellant’s complaint suffers from the defects set forth by respondents in
their demurrers.

The alleged fraud cause of action
arose on January 12, 2006, when Dugan entered a guilty plea and was
sentenced. However, appellant did not
file his complaint until October 21, 2010.
Therefore, the complaint is barred by the three-year statute of
limitations for fraud causes of action.
(Code Civ. Proc., § 338, subd. (d).)

Further, appellant is alleging the
fraud cause of action on behalf of Dugan.
Thus, appellant is not the real party in interest, i.e., he has suffered
no harm and no remedy can provide him relief.
(Code Civ. Proc., § 367; City
of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 60.) Accordingly, appellant cannot prosecute the
action.

Finally, appellant’s complaint is
barred by the Government Claims Act.
Appellant filed his complaint against the Lemoore Police Department and
various public employees for acts committed in the scope of their employment. Before suing a public entity or the public
entity’s employee for personal injuries, the plaintiff must present a timely
written claim for damages to the entity.
(Shirk v. Vista Unified School
Dist. (2007) 42 Cal.4th 201, 208.)
Such timely claim presentation is a condition precedent to filing an
action against the entity or the employee and thus is an element of the
plaintiff’s cause of action. (>Id. at p. 209; Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750.) Appellant did not file such claims and thus
his action against the Lemoore Police Department and the public employees is
barred.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondents.