Shokohi v. Wells Fargo Bank

 

 

 

 

 

 

 

 

Filed 11/5/13  Shokohi v. Wells Fargo Bank CA2/6

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

 
>

EMIL SHOKOHI,       Plaintiff and Appellant,   v.   WELLS FARGO BANK, et al.,       Defendants and Respondents.

2d Civil No. B247526 (Super. Ct. No. CV120199A) (San Luis Obispo County)

 

            Emil Shokohi, proceeding in href="http://www.fearnotlaw.com/">propria persona, purports to appeal from an
order denying his motion for reconsideration after the trial court granted a
motion for judgment on the pleadings filed by Wells Fargo Bank, N.A., and
Aubrey Kachmarik, respondents.  "An
order denying a motion for reconsideration . . . is not separately
appealable."  (Code Civ. Proc.,
§ 1008, subd. (g).)  "An order
granting . . . a motion for judgment on the pleadings is [also] not an
appealable order because it is not final, but only a preliminary or
interlocutory order.  The proper appeal
is from an actual judgment.  [Citations.]"  (Neufeld
v. State Bd. of Equalization (2004) 124 Cal.App.4th 1471, 1476, fn. 4.) 

The
record contains no judgment; it contains only an order granting the motion for
judgment on the pleadings and an order denying appellant's motion for
reconsideration.  The superior court
clerk has informed us that there is no judgment in the case file.  The absence of a judgment is not fatal to the
appeal.  "The merits of the appeal
have been fully briefed by both parties and no prejudice to [respondents] would
result from considering the merits.  Under these circumstances, '[t]o dismiss the
appeal "merely to have a judgment formally entered below with a new appeal
would be a useless waste of judicial and litigant time."  [Citation.]'  [Citation.]  Accordingly, we order the trial court to
enter, nunc pro tunc as of the date of the order [denying appellant's motion
for reconsideration], a judgment dismissing the action . . . , and we then
construe the notice of appeal to
refer to such judgment. 
[Citation.]"  (>Donohue v. State of California (1986)
178 Cal.App.3d 795, 800.)  We affirm.

>Factual and
Procedural Background

            Appellant is 82 years old.  On April 4, 2012, he filed a
complaint consisting of seven causes of action. 
All of the causes of action arose out of an incident that occurred on April 7, 2010,
when Wells Fargo employees detained appellant for over an hour after he had
deposited a State of California
check for $1,003.85.  Appellant alleged
that the employees had falsely accused him of forging the check. 

            At a hearing conducted on November
14, 2012, the trial court granted respondents' motion for judgment on the
pleadings.  The court concluded that,
except for the fourth cause of action for intentional infliction of emotional
distress, all of the causes of action were barred by a one year href="http://www.fearnotlaw.com/">statute of limitations.  As to the fourth cause of action, the court
ruled that appellant had failed to state a cause of action.

            In his motion for reconsideration,
appellant argued that the statute of limitations was tolled because in March
2009 he had suffered a head injury that "resulted in [his] disorientation
with respect to time."  "As a
direct result of [his] head injury . . . he could not remember . . . to file
his action [within the] time limit required by law."  In support of the motion, appellant attached
medical records for the injury and declared that, "[o]n or about" November
10, 2012, he "was able to obtain" the records.  At that time his brother "reminded"
him of the head injury.

            The trial court denied the motion
for reconsideration because (1) the facts relating to appellant's head injury
and memory loss were known to him before the hearing on the motion for judgment
on the pleadings; (2) as a matter of law, appellant's alleged disability (memory
loss resulting from a head injury) cannot toll the statute of limitations; and
(3) appellant's medical records "do not support the conclusion that [he]
was disoriented from 2009 through the time of filing the complaint in
2012."

>Standard of Review

"
'A motion for judgment on the pleadings
. . . challenges the sufficiency of the plaintiff's cause
of action and raises the legal issue . . . of whether
the complaint states a cause of action.
 [Citation.]'  [Citation.]"  (Arce
v. County of Los Angeles (2012) 211 Cal.App.4th 1455, 1483, fn. 16.)  "We review the granting of a motion for name="SR;1403">judgment on the pleadings de novo to
determine whether a cause of action
has been stated, treating as true all properly pleaded material facts.  [Citation.]"  (Soco
West, Inc. v. California Environmental Protection Agency (2013) 213 Cal.App.4th 1511, 1514.) 

A
party may move for reconsideration of an order "based upon new or
different facts, circumstances, or law." 
(Code Civ. Proc., § 1008, subd. (a).)  "A trial court's ruling on a motion for
reconsideration is reviewed under the abuse of discretion standard.  [Citation.]"  (Glade
v. Glade (1995) 38 Cal.App.4th 1441, 1457.) 

>Discussion

            Appellant contends that the trial
court abused its discretion in not granting his motion for reconsideration
because he presented new facts showing that he had suffered memory loss as a
result of a head injury sustained in March 2009.  As a result of the memory loss, he did not
file his complaint in a "timely manner."  "[H]is medical disabilities . . . served
to toll the statute of limitations."   

            The trial court did not abuse its
discretion.  "The party seeking
reconsideration must provide not just new evidence or different facts, but a
satisfactory explanation for the failure to produce it at an earlier time.  [Citation.]"  (Glade
v. Glade, supra, 38 Cal.App.4th
at p. 1457.)  The trial court reasonably
concluded that the facts relating to appellant's head injury and memory loss
were known to him at the time of the hearing on the motion for judgment on the
pleadings.  The hearing occurred on
November 14, 2012, four days after appellant's brother reminded him of the
injury.  The trial court noted that, in appellant's
written opposition to the motion for judgment on the pleadings, he had "argued
that the statute of limitations should be tolled as a result of his medical
disability."href="#_ftn1" name="_ftnref1"
title="">[1]  Appellant's written opposition was filed on November 2, 2012,
12 days before the hearing on the motion for judgment on the pleadings.

Furthermore,
the trial court reasonably concluded that appellant's medical records "do
not support the conclusion that [he] was disoriented from 2009 through the time
of filing the complaint in 2012." 
The court pointed out that "Dr. Ramberg's March 2[6], 2009
discharge note . . . states that '[respondent] had some cognitive difficulties
[when he was initially evaluated on March 23,2009], but those cleared rapidly .
. . .' "

The
trial court's final reason for denying the motion for reconsideration was that,
as a matter of law, appellant's alleged disability (memory loss resulting from
a head injury) cannot toll the statute of limitations.  Appellant has not presented any legal analysis
on this issue.  We therefore presume that
there was no error.  " 'A judgment
or order of the lower court 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.' "  (>Denham v. Superior Court (1970) 2 Cal.3d
557, 564.) 

>Disposition

The
matter is remanded to the trial court with directions to enter, nunc pro tunc
as of the date of the order denying appellant's motion for reconsideration
(February 6, 2013), a judgment dismissing the action.  The judgment is affirmed.  Respondents shall recover their costs on
appeal.

                        NOT TO BE
PUBLISHED.

 

 

 

                                                                                    YEGAN,
J.

 

 

We
concur:

 

 

            GILBERT, P.J.

 

 

            PERREN, J.

 



Martin J. Tangeman, Judge

 

Superior Court County of San Luis
Obispo

 

______________________________

 

 

            Emil Shokohi, in pro per, Appellant.

 

            Margaret M. Schneck, for
Respondent.