1

Filed 1/25/16 Ibrahim v. Jones CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SAEED IBRAHIM, Plaintiff and Appellant,

v.
DANIEL JONES

, Defendant and Respondent. A141735

(San Francisco City and County Super. Ct. No. CGC

- 11

- 508375)

This case arises from an attempt by Extreme Auto Recovery (Extreme Auto)

, and

its agent Daniel Jones, to repossess an automobile from appellant Saeed J. Ibrahim

. Ibrahim filed su it against Extreme Auto and Jones seeking damages for multiple alleged
torts and civil rights violations related to the attempted repossession. In a prior
unpublished decision, we affirmed summary judgment entered in favor of Extreme Auto

. 1
The present a ppeal is taken from judgment entered in favor of the remaining defendant,

1 Jones requested judicial notice of our prior decision ( Ibrahim v

. Extreme Auto Recovery, Inc . (Dec. 4, 2014, A138663) [nonpub. opn.]), as well as judicial notice of Ibrahim’s opening brief in that appeal. The opinion is law of the case on the issues decided and citable for that purpose. (S ee San Francisco Forty

- Niners v

. Nishioka (1999) 75 Cal. App.4th 637, 645

– 646 & fn. 7; Cal . R ules of C ourt, rule 8.1115(b)(1).) Judicial notice of our prior opinion is therefore unnecessary. We previously granted the unopposed request to take notice of Ibrahim’s opening brief in the prior matter. ( Khodayari v Mashburn (2011) 200 Cal.App.4th 1184, 1196 & fn. 1 [judicial notice of appellate briefs in related appeal].)2

Jones, following summary adjudication of all causes of action , denial of leave to amend
the operative complaint, and the subsequent judgment on the pleadings. 2 We affirm.

I

. B ACKGROUND AND P ROCEDURAL H ISTORY

Ibrahim financed the purchased of a Lincoln Town Car

. He missed monthly
payments on the vehicle and received demands for payment. Prior to February 2010, two

attempts had been made to repossess the vehicle. On February 22, Ibrahim’s wife called

him to report that a tow truck was blocking their driveway. Ibrahim alleged that he drove
home in his Audi and unsuccessfully asked the tow truck driver, Jones, to move his truck. Ibrahim then drove over his neighbor’s driveway to maneuver the Audi into his driveway. After Ibrahim parked, he and Jones got out of their vehicles, and Jones said, “ ‘Oh, now so you going to run me over? Nigger.’ ” Jones “ took a swing ” at Ibrahim, but did not

strike him. 3 Jones called San Francisco Police and reported that Ibrahim had hit him with

the Audi

. A confrontation ensued between police and Ibrahim, resulting in Ibrahim’s arrest. Ibrahim alleged that he was beaten by “Doe Defendants ,” but testified at
deposition t hat it was not Jones who struck him. 4
The operative pleading is Ibrahim’s f irst a mended c omplaint (FAC) filed on

June 23 , 2011 . The pro se complaint alleged causes of action for false arrest/false
imprisonment, assault and battery, negligent and intentio nal infliction of emotional
distress, negligent hiring , retention, supervision and assignment , and violations of the

2 We are privy to the procedural history as to Jones only as a result of Jones’s citation to the appropriate trial court record in the instant cas e. As discussed post , Ibrahim cites the record in the prior proceeding ( Ibrahim v

. Extreme Auto Recovery, Inc

. , supra, A138663). With the exception of two paragraphs, Ibrahim’s opening brief here is virtually identical to that filed in the previous appea l.

3 In his deposition, Ibrahim described Jones as “shadowboxing” and said he had “no doubt in [his] mind that [Jones was] not going to hit [him].”

4 Ibrahim filed a separate lawsuit against the City and County of San Francisco and individual police office rs.3

Unruh Civil Rights Act (Civ. Code, § 51 et seq.)

. On November 2 6 , 2012, the trial court permitted substitution of Jones as a “Doe” defenda nt. 5
On April 8, 2013, Jones moved for summary judgment , or alternatively summary
adjudication on all causes of action

. Prior to hearing on Jones’s motion, Ibrahim filed a
motion to amend the FAC to include , inter alia, causes of action for unlawful
repossession and civil extortion

. On July 1, the court (Hon. Richard Kramer) denied
summary judgment, but granted Jones’ s motion for summary adjudication as to all claims

in the FAC. T he court denied Ibrahim’s motion for l eave to amend the FAC due to

Ibr ahim’s failure to comply with California Rules of Court, rule 3.1324

. 6 Specifically,

the “ unlawful repossession ” claim was denied with prejudice because it was not a valid

cause of action under California law

, 7 and the civil extortion claim was denied without
prejudice

. A continuance was granted pursuant to Code of Civil Procedure section 437 c ,

5 On December 21, 2012, the trial court (Hon. Marla Miller) granted Extreme Auto’s motion for summary judgment , holding that Ibrahim’s claims were based on Jones’ s alleged false report to the police, which was absolutely privileged under Civil Code section 47 , subdivision (b) . On appeal from the resulting judgment of dismissal, we agreed with the trial court and affirmed. ( Ibrahim v

. Extreme Auto Recovery, Inc

. , supra, A138663.)

6 California Rules of Court, rule 3.1324 provides in pertinent part: “ A motion to amend a pleading before trial must: [¶] (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; [ ] (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and [¶] (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. [¶]

. . . A separate declaration must accompany the motion and must specify: [¶] (1) The effect of the amendment; [¶] (2) Why the amendment is necessary and proper; [¶] (3) When the facts giving rise to the amended allegations were discovered; and [¶] (4) The reasons why the request for amendment was not made earlier. ”

7 The court noted that a conversion claim would be a valid cause of action, but that it was not applicable to this case because Jones did not obtain Ibrahim’s car by unlawful means. The court also denied leave to add Ibrahim’s wife as a plaintiff, finding the claims were time barred

.4

subdivision ( h )

, to allow Ibrahim to conduct discovery to attempt to establish the civil

extortion claim.
On July 12, 2013, Ibrahim filed a second motion to am end the FAC, including a proposed second amended complaint containing a single cause of action alleging civil

e xtortion. Jones opposed. On September 5, the trial court (Hon. Leslie Nichols) denied

the motion. 8
On January 8, 2014, Jones filed a motion fo r judgment on the pleadings or, in the
alternative, motion for entry of judgment. Following hearing o n March 5, the court (Hon.
Ernest Goldsmith) granted the motion for judgment on the pleadings finding that: ( 1) the court had previously granted Jones’ s motion for summary adjudication on all causes of
action alleged against Jones in the FAC; ( 2) the court had given Ibrahim an opportunity
to plead a cause of action for extortion; and ( 3) the court had subsequently denied

Ibrahim ’s second motion to amend w ith prejudice. The court found that Ibrahim had no

viable claims remaining

. J udgment was entered in favor of Jones on May 20

. Ibrahim filed a notice of appeal on May 5, 2014

, from the March 5 “ [ j ] udgment o f

dismissal.”

II. D ISCUSSION We begin by reiterating settled rule s of appellate review, often unfamiliar to pro se
litigants, and sometimes ignored even by licensed practitioners. “ ‘A judgment or order

of the lower court is presumed correct

. All intendments and presumptions are ind ulged
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.’ ” ( Denham v. Superio r Court (1970) 2 Cal.3d
557, 564 .) The appellant has the burden of demonstrating error on the part of the trial
court. ( Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140

– 1141 ; People v. Giordano
(2007) 42 Cal.4th 644, 666 [ “ ‘ “ e rror must be affirmatively sh own ” ’ ” ]. ) “[T]he party
asserting trial court error may not .

. . rest on the bare assertion of error but must present

8 The order provides no explanation and n o record of that hearing is provided.5

argument and legal authority on each point raised.” ( Boyle v. CertainTeed Corp. (2006)

137 Cal.App.4th 645

, 649.) “To demonstrate err or, appellant must present meaningful
legal analysis supported by citations to authority and citations to facts in the record t hat
support the claim of error. ” ( In re S.C. (2006) 138 Cal.App.4th 396, 408; see Cal. Rules
of Court, rule 8.204(a)(1)(C).)

Ib rahim is not exempt from the rules because he chose to represent himself on
appeal. ( Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; McComber v. Wells (1999)
72 Cal.App.4th 512, 522

– 523.) “[S]uch a party is to be treated like any other party and is
entitled to the same, but no greater consideration than other litigants and attorneys. ”
( Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4 th 1200, 1210.)

As noted ante , Ibrahim filed an opening brief in this matter th at is essentially

identical to w hat he submitted in the prior appeal. The only apparent difference is the
inclusion of two paragraphs, reciting : “This is a lawsuit between pl aintiff Saeed Ibrahim,

an individual, and Daniel Jones, a tow truck operator and automobile repossessor. [ ¶ ] On February 22, 2010, Jones came to Ibrahim’s house in the early evening and demanded

that Ibrahim turn over an automobile that Ibrahim was buying on time. Jones threatened to have Ibrahim ‘fucked up’ and to call the police if Ibrahim didn’t turn it over.” The

brief do es not mention the judgment entered in Jones’ s favor, nor does it suggest why the
trial court may have erred in entering that judgme nt. 9 Ibrahim has forfeited his
arguments on appeal by failing to apply cited legal principles to the particular facts of the
FAC and to support his arguments with citations to specific evidence in the record. (See
Badie v. Bank of America (1998) 67 Cal.A pp.4th 779, 784

– 785 ; Guthrey v. State of

9 Counsel later retained by Ibrahim explained, in a motion to strike Ibrahim’s pro se opening brief, that Ibrahim had attempted to “adapt briefing

. . . submitted in the earlier appeal.” Counsel sought leave to prepare and file a new opening brief. Jones opposed the motion, arguing that he would be prejudiced by the burden of responding to a new pleading and by the tactical advantage Ibrahim would gain f rom drafting a new opening brief in light of arguments and strategy in the alre ady

- filed respondent’s brief. He also argued that Ibrahim had made a conscious choice to prepare and file his pleadings pro se . By order of September 29, 2015, we denied Ibrah im’s motion to strike his opening brief

.6

California (1998) 63 Cal.App.4th 1108, 1115

– 1116; Cal. Rules of Court,

rule 8.204(a)(1)(C).)

Even if Ibrahim’s claims were not forfeited , he provides no basis for addressing

them on the merits

. T he court’s July 1, 2013 order granting summary adjudication

eliminated all claims in the FAC for the same reason we affirmed the earlier grant of
summary judg ment in favor of Extreme Auto

— that the absolute litigation privilege
provided under Civil Code section 47 , su bdivision (b)

, barred all of the causes of action
pled. ( Ibrahim v

. Extreme Auto Recovery, Inc

., supra , A138663 ; see Hagberg v.
California Federal Bank (2004) 32 Cal.4th 350, 355

. ) Our prior decision, as law of the
case, cannot be revisited and applies e qually to the same claims asserted against Jones. 10

“ ‘ Under the doctrine of the law of the case, a principle or rule that a reviewing court
states in an opinion and that is necessary to the reviewing court ’ s decision must be
applied throughout all later proceedings in the same case, both in the trial court and on a
later appeal. ’ ” ( Water Repl enishment Dist. of Southern California v. City of Cerritos
(2012) 202 Cal.App.4th 1063, 1071 .) The July 1, 2013 order denied Ibrahim’s mo tion to amend the FAC to p lead

“ unlawful repossession ” because unlawful repossession was not a valid cause of action,

and a ny claim of conversion was not applicable because Jones did not obtain Ibrahim’s
car by unlawful means. Ibrahim makes no effort to explain why this was error. 11

After a continuance was granted to allow discovery regarding a civil extortion

claim

, Ibrahim sought leave to amend the FAC to plead a single cause of action for civil

e xtortion. We are provided a copy of the court’s September 5, 2013 order summarily

10 Jones argues that our prior decision is res judicata. “ The doctrines of res judicata and collateral estoppel apply to later litigation to give conclusive effect to a former judgment or an issue determined in a fo rmer proceeding. ” ( Griset v . Fair Political Practices Com. (2001) 25 Cal.4th 688, 701

– 7 02 .)

11 In his opening brief, Ibrahim contends only that he could have pled a claim of unlawful repossession against Extreme Auto , and that he should have been allowed t o amend his complaint to do so before the grant of summary judgment in favor of Extreme Auto.7

denying the motion, but no record of the hear ing. Ibrahim again fails to explain why that

decision was in error, and fails to provide an adequate record for review

. 12 “The party
seeking to challenge an order on appeal has the burden to provide an adequate record to
assess error. [Citation.] Where the party fails to furnish an adequate record of the
challenged proceedings, his claim on appeal must be resolved against him

. ” ( Rancho

Santa Fe Ass n

. v. Dolan

- King (2004) 115 Cal.App.4th 28, 46.) We are requi red to
presume that the record contains evidence to support every finding of fact, unless an
appellant affirmatively shows otherwise. ( Huong Que, Inc. v Luu (2007)

150 Cal.App.4th 400, 409.) “ ‘ “[I]f any matters could have been presented to the court

be low which would have authorized the order complained of, it will be presumed that

such matters were presented.” ’ ” ( Foust v. San Jose Construction Co., Inc. (2011)

198 Cal.App.4th 181, 187.) W ithout an adequate record, Ibrahim could not meet his

burden on this issue, even if the issue were addressed in his brief.
Finally, Ibrahim fails to explain how the trial court erred in entering judgment on
the pleadings when, the court having granted summary adjudication and denied leave to
amend, no viable cause o f action remained.

III. D ISPOSITION The judgment is affirmed. Jones is to recover costs on appeal.

12 Ibrahim discusses a cause of action for civil extortion in his opening brief only in contending that the litigation privilege would not apply to bar his claim.8 _________________________ BRUINIERS, J.

WE CONCUR:

_________________________ JONES, P. J.

_________________________ NEEDHAM, J.