SOLOMON DEAN SHARGANI v. MASHALLAH FOROUTANZAD (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In this appeal, the plaintiff Solomon Dean Shargani seeks reversal of an adverse judgment on his complaint entered on November 13, 2009 after a one-day bench trial.   He had filed his original complaint on February 13, 2007 against the defendant Mashallah Foroutanzad for an alleged breach of contract and breach of trust.¹

The plaintiff's claim was that, in approximately 1985, he had given money to the defendants to hold for him until such time as he could leave the Islamic Republic of Iran.² The plaintiff and defendants disagree as to the amount of money involved and whether any sum at all is owed by defendants to plaintiff.

The case was tried by the court on June 30, 2008.   After receiving the testimony from the plaintiff and the defendant Mashallah Foroutanzad, the trial court found that, “given the years of passage and the conflicting evidence,” it could not “find that Plaintiff has proven his case by the requisite preponderance of the evidence.”   In addition, the trial court found that the defendants had effectively (albeit inartfully) asserted a statute of limitations of defense.   Since plaintiff had conceded during his testimony that he had “raised claims regarding the debt since the year 2000,” the court found that the claim was barred by the two-year statute of limitations, set out in Code of Civil Procedure, section 339, applicable to an oral contract.

Thus, based on its conclusion that plaintiff had not proven his claim by a preponderance of the evidence and that his claim was further barred by the applicable statute of limitations, the trial court found in favor of the defendants.

Because judgments and orders of a court are presumed to be correct, persons challenging them must affirmatively show reversible error.  (Walling v. Kimball (1941) 17 Cal.2d 364,373.)   In a sufficiency of the evidence challenge such as we have in this appeal, if there is substantial evidence, whether contradicted or uncontradicted, that supports the conclusion of the trier of fact (which in this case was the trial court, not a jury), the judgment must be affirmed.  (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)   Thus, in order for plaintiff to prevail in this appeal he must show that there is no substantial evidence to support the findings of the trial court that he challenges.  (Robinson v. Pediatric Affiliates Medical Group, Inc. (1979) 98 Cal.App.3d 907, 910.)   But plaintiff cannot do that because he has not provided us with the whole of the evidence presented at trial.   Therefore, we cannot possibly say that in the whole of the evidence there is no substantial evidence to support the trial court's decision.

The clerk's transcript shows that during the trial the court received testimony from both plaintiff and defendant Mashallah Foroutanzad, and also received documents from both plaintiff and defendants.   Thus, the trial court was presented with evidence from several sources to use in determining whether plaintiff proved his case by a preponderance of the evidence (that is, whether plaintiff proved that it is more likely than not that defendants owed him money).   It is true that we granted plaintiff's request to augment the record on appeal with what plaintiff describes as a translation of a letter from defendant Mashallah Foroutanzad to plaintiff, which plaintiff contends shows that Mashallah Foroutanzad received money from plaintiff and placed it in a bank account.   However, by itself the translated letter is not sufficient to cause this court to reverse the judgment.   It is only one piece of the evidence received by the trial court, not the whole of the evidence.   That evidence consisted of all of the documents presented by the defendants, as well as the testimony given by plaintiff and Mashallah Foroutanzad.³

Because orders and judgments of a court are presumed to be correct, and because plaintiff has not presented us with sufficient evidence to rebut that presumption, we must therefore presume that substantial evidence was presented to support the trial court's determinations that (1) plaintiff's evidence was not sufficient to meet his preponderance of the evidence burden of proof, and (2) the applicable statute of limitations ran before this suit was filed.   We will therefore affirm the judgment.

DISPOSITION

The judgment is affirmed.   Each party shall bear his or her own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We Concur:

FOOTNOTES

FN1. Plaintiff amended his complaint on September 19, 2007 to add Gity Yadidi Foroutanzad as an additional defendant.   She is alleged to be the wife of Mashallah Foroutanzad, the original defendant.   For simplicity and convenience, we will hereafter sometimes refer to them collectively as the defendants..  FN1. Plaintiff amended his complaint on September 19, 2007 to add Gity Yadidi Foroutanzad as an additional defendant.   She is alleged to be the wife of Mashallah Foroutanzad, the original defendant.   For simplicity and convenience, we will hereafter sometimes refer to them collectively as the defendants.

FN2. The amount of money involved is alleged to be “in excess of $25,000.”.  FN2. The amount of money involved is alleged to be “in excess of $25,000.”

FN3. Regarding the parties' testimony, we note that the clerk's transcript contains three separate designations of the appellate record that plaintiff filed.   On each of those three designation forms plaintiff checked the box indicating he elected to proceed in this appeal without a record of the oral proceedings in the trial.   Next to the checked box on each of those three forms is the following preprinted acknowledgement:  “I understand that without a record of the oral proceedings in the trial court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether the trial court made an error.”   Clearly plaintiff was warned that our ability to determine whether the trial court erred in entering a judgment for defendants could rest on our being able to consider the whole of the evidence presented by the parties at trial..  FN3. Regarding the parties' testimony, we note that the clerk's transcript contains three separate designations of the appellate record that plaintiff filed.   On each of those three designation forms plaintiff checked the box indicating he elected to proceed in this appeal without a record of the oral proceedings in the trial.   Next to the checked box on each of those three forms is the following preprinted acknowledgement:  “I understand that without a record of the oral proceedings in the trial court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether the trial court made an error.”   Clearly plaintiff was warned that our ability to determine whether the trial court erred in entering a judgment for defendants could rest on our being able to consider the whole of the evidence presented by the parties at trial.

KITCHING, J. ALDRICH, J.