Filed 3/17/15 Salmanzadeh v. Bosley Medical Group CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

GHORBAN ALI SALMANZADEH et al.
,
Plaintiff s and A ppellant s ,

v.

BOSLEY MEDICAL GROUP et al.
,
Defendant s and Appellants

. B249529

(Los Angeles County Super. Ct. No. BC445812 )

APPEAL from a judgment of the Superior Court of Los Angeles County. Terry A.
Green , Judge

. Dismissed in par t and affirmed in part

.

Peters & Peters and Barbara J. Peters for Plaintiffs and Appellants.

Wilson Elser Moskowitz Edelman & Dicker and Melissa A. Murphy

- Petros f or Defendants and Appellant s

.

___________________ __________ _2

Factual Background
On Febr uary 5, 2010, Ghorban Ali Salmanzadeh underwent an elective hair transplant procedure. The procedure was performed by Dr. Terrence Aragoni at the
San Francisco clinic of Bosley Medical Group. Five days la ter, it was discovered that
Mr. Salmanzadeh had su ffered a stroke. First Amended Complaint, Trial , and Judgment Mr. Salmanzadeh and his wife, Julie Salmanzadeh, filed an action against Bosley Medical Group, Bosley Institute, Inc., Bosley Medical Institute of California, Inc., Bosley Inc., and Dr. Aragoni . Their first amended complaint alleges claims for fraud and deceit, misrepresentation, intentional infliction of emotional distress, battery, negligent failure to obtain informed consent, medical negligence, loss of consortium, breach of contract, and
vi olation of Business and Profession s Code section 17200. The case proceeded to trial. Ultimately, judgment was entered in favor of plaintiffs in part and Bosley Inc. in part “in accordance with the jury’s verdict” and the trial court’s order granting a mo tion for directed verdict on plaintiffs’ fraud, battery, and
intentional infliction of emotional distress causes of action. Bosley Inc. was awarded
costs in the amount of $7,295. Judgment was entered in t he total amount of $1,238,533.71 plus interest in favor of plaintiffs on their negligence and loss of consortium claims against Bosley Medical Gr oup and Dr. Aragoni. Appeal and Cross

- appeal On June 20, 2013, Bosley Medical Group, Bosley Inc., and Dr. Aragoni (collectively defendants ) timely filed a notic e of appeal. On July 5, 2013, plaintiffs filed
a notice of cross

- appeal, seeking review of th e trial court’s non suit rulings. While the appeal and cross

- appeal were pending, but before the parties’ briefs were filed, the parties participated in mediat io n under the auspices of this c ourt’s
medi ation program. Apparently no settlement was reached. Judgment is Satisfied in Full On May 12, 2014, Bosley Medical Group notified plaintiffs that it had decided to pay the full amount of the judgment with all accr ued interest. On May 22, 2014, the3

judgment was paid in full ($1,373,583). On June 5, 2014, plaintiffs acknowledged satisfaction of the judgment, and on June 13, 2014, the acknowledgement of satisfaction of judgment was filed in the trial court. 1

Plaint iffs’ Motion for Sanctions Meanwhile, on May 13, 2014, plaintiffs filed a motion for sanctions against appellants for filing a frivolous appeal. They later filed an amended motion for sanctions
, seeking $51,400 in attorney fees and $3,532 in costs

. Defen dants ’ Motion to Vacate the Judgment Against Dr. Aragoni On June 17, 2014, d efendants filed in this court a motion to vacate the judgment against Dr. Aragoni , pursuant to Code of Civil Procedure section 128, subdivision (a)(8)

. Plaintiffs filed an opposi tion to that motion. Defendants ’ Opening Brief On August 7, 2014, defendants filed their opening brief, in which they assert: “Because Bosley Medical Group has fully satisfied the judgment, it and Dr. Aragoni are no longer pursuing their appeal of the ju dgment.” The only reason that they did not dismiss their appeal is because we had not yet ruled on their motion to vacate the judgment and they did not want to deprive us of jurisd iction to rule on that motion. Plaintiffs’ Responsive Brief and Opening Bri ef in the Cross

- appeal One week later, plaintiffs filed their response to defendant s’ opening brief and their opening brief in support of their cross

- appeal. They contend that the appeal is moot
and that defendants should be sanctioned. In their cross

- a ppeal, they argue that the cause of action for fraud against Bosley Inc. should have been submitted to the jury. Alternatively, even if the claim should not have gone to the jury, Bosley Inc. should not have been awarded costs “based upon the unified defe nse and in demnity agreement.”

1 We g rant defendants’ request for judicial notice and take judicial notice of the fact that the judgment was satisfied in full.4

I. Defendants ’ Motion to Vacate the Judgment Against Dr. Aragoni Code of Civil Procedure section 128, subdivision (a)(8), provides, in relevant part: “An appellate court shall not

. . . vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial
settlement.” Quite simply, we must d eny the motion to vacate the judgment because there is no agreement or stipulation between the parties, a critical fact seemingly overlooked by
defendants

. Having not satisfied the statutory requirement, defendants are not entitled to have the judgment ag ainst Dr. Aragoni vacated.
II. The Appeal is Dismissed as Abandoned As set forth in their opening brief, Bosley Medical Group and Dr. Aragoni are not pursuing the ir appeal of the judgment. The only reason that they did not dismiss their appeal was becau se we had not yet ruled on defendants ’ motion to vacate the judgment against Dr. Aragoni. As set forth above, we have now denied that motion for failure to comply with the statutory requirements. It follows that the appeal is dismissed as abandoned. (Se e Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1290, fn. 1.)
III. Plaintiffs’ Motion for Sanctions In their original motion and their amended motion, plaintiffs seek sanctions pursuant to Code of Civil Procedure secti on 907 and California Rules of Court, rule 8.276 against defendants for pursuing a frivolous appeal. Code of Civil Procedure section 907 provides: “When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.” (See also Cal. Rules of Court, rule 8.276.) After careful consideration of the moving papers, we conclude that the motion must be denied.5

Plaintiffs have not demonstrated either that the appeal was f rivolous or that defendants filed their appeal solely for delay. Defendants filed their notice of appeal following entry of judgment, and plaintiffs have not established that defendants had no basis whatsoever to do so. Once the judgment was paid, defend ants were cautious and protected their rights

— they did not dismiss their appeal because they did not want to jeopardize this court’s jurisdiction over their pending motion to vacate the judgment against Dr. Aragoni. Such a decision was prudent, even thoug h we have now denied the motion to vacate the judgment. And given defendants ’ clarity in their reason for leaving the appeal open, we cannot imagine how plaintiffs incurred $51,400 in attorney fees. It follows that we deny plaintiffs’ request for sanctio ns. IV. Plaintiffs’ Cross

- appeal
A. Notice of Cross

- appeal
Defendants argue that because plaintiffs’ notice of appeal fails to identify the name of each appellant, and instead uses the phrase “Ghorban Ali Salmanzadeh et al.,”
their notice of cross

- appe al is defective. We disagree. “The notice of appeal must be liberally construe d.” (Cal. Rules of Court,
rule 8.100(a)(2).) The test is whether it is reasonably clear as to what the appellant was trying to appeal from and the respondent could have possi bly been misled or prejudiced. ( In re Joshua S. (2007) 41 Cal.4th 261, 272.) Moreover, the absence of a party’s name from a notice of appeal does not deprive an appellate court of jurisdiction to consider issues related to the party as a matter of law. (See Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1216

– 1217 [notice sufficient where judgment affected wife ; husband signed notice of appeal but did not include wife’s name in notice]; Hopkins v. Sanderson (1916) 29 Cal.App. 666, 668 [use of plural word “de fendants” for parties in notice of appeal makes it apparent that all affected parties intended to appeal].) Here, the fact that the notice of appeal refers to Mr. Salmanzadeh “et al.” and the fact that it was filed by the same attorney who represented pla intiffs at trial make it clear that both Mr. Salmanzadeh and his wife intended to appeal from the orde r granting
nonsuit.6

B

. Fraud Claim Plaintiffs argue that the trial court erred in granting a nonsuit of their fraud claim.
1. Procedural Background
A s set forth above, plaintiffs alleged a fraud and deceit claim against Bosley Inc. According to the first amended complaint, this c ause of action alleges that
Mr. Salmanzadeh relied upon fraudulent television infomercials and fraudulent printed
literature in making the decision to undergo the hair transplant procedure. After plaintiffs presented their evidence, the trial court granted a motion of nonsuit on the fraud cause of action, reasoning that plaintiffs could not show reliance. The trial court stat ed: “How do you show reliance other than just guessing? And that’s all you’re doing is guessing.”

2. Relevant Law We review the trial court’s order de novo. ( Thrifty Payless, Inc. v. Mariners Mile Gateway , LLC (2010) 185 Cal.App.4th 1050, 1060.) Whi le we evaluate the evidence in the light most favorable to plaintiffs ( Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291), plaintiffs cannot rely upon mere conjecture in order to prevail ( Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571 , 1580). The elements of a fraud claim are: (1) a misrepresentation; (2) with knowledge of its falsity; (3) with the intent to induce another’s reliance upon the misrepresentation; (4) justifiable reliance; and (5) resulting damage. ( Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255.) “Justifiable reliance” consists of two elements: (1 ) Actual reliance, that is a “‘ “complete causal relationship” between the alleged misrepresentations and the harm claimed to have resulted the refr om ’” ; and ( 2) reasonable reliance , meaning “‘circumstances were such to make it reasonable for [the] plaintiff to accept [the] defendant’s statements without an independent inquiry or investigation

. ’” ( OCM Principal Opportunities Fund, L.P. v. CIBC World Mar kets Corp. ( 2007 ) 157 Cal.App.4th 835, 864.)

3. Analysis With these principles in mind, we readily conclude that the trial court properly dismissed plaintiffs’ fraud claim ; plaintiffs could not establish th e necessary element of7

reliance as there was no evidence presented at trial that Mr. Salmanzadeh viewed the infomercial or reviewed the printed brochure. While Mrs. Salmanzadeh testified that she and her husband did see some sort of infomercial, she did not identify the specific one that they watch ed; she did not testify when they saw it, what time, or what network
broadcast the infomercial. While she did state that one infomercial produced in discovery was “remarkably similar” to the ones she and her husband saw, there was no evidence regarding th e actual infomercial that she and her husband watched. Likewise, there was no evidence presented at trial that Mr. Salmanzadeh viewed and relied upon the Bosley brochure that Mrs. Salmanzadeh’s sister found on his desk. Absent any evidence of reliance, the trial court properly did not send this cause of action to the jury.
C. Cost Award to Bosley Inc. Bosley Inc. submitted a memorandum of costs, requesting over $67,031 in costs. Plaintiffs filed a motion to strike and/or tax costs, arguing that Bosle y Inc. was not entitled to recover any costs because there was a unified defense and indemnity agreement among defendants. The trial court granted t he motion in part and denied in part, awarding B osley Inc. $7,295. Plaintiffs assert the same arguments on appeal. We review the trial court’s award of costs for abuse of discretion. ( Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 990; Najah v. Scottsdale Ins. Co. (2014) 230 Cal.App.4th 125, 143

– 144 [ costs under Code of Civil Procedure section 99 8] .) We are not convinced by plaintiffs’ argument s . It has been held “that where one of multiple, jointly represented defendants presenting a unified defense prevails in an action, the trial court has discretion to award or deny costs to that party.” ( T extron Financial Corp. v. National Union Fire Ins. Co. (2004) 118 Cal.App.4th 1061, 1075, overruled in part on other grounds in Zhang v. Superior Court (2013) 57 Cal.4th 364, 382.) In ligh t of the trial court’s comments, we conclude that the trial court e xercised its discretion, went through the record, and apportioned costs as it deemed appropriate. The8

trial court significantly reduced the costs sought, and we cannot find any error in its
decision. As for plaintiffs’ contention that the indemnity provi sion in some sort of agreement among defendants vitiates any award of costs , plaintiffs have not met their burden on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [appellate court is not required to make an independent, unassisted search of the appellate record].) Plaintiffs direct us to one page of an agreement that contains a ge neral indemnification provision , but we were not provided with a copy of the entire agreement. We cannot eve n determine what sort of agreement it is and who the parties are to it. While counsel purports to represent these terms in the parties’ appellate briefs, “[i]t is axiomatic that the unsworn statements of counsel are not evidence.” ( In re Zeth S. (2003) 3 1 Cal.4th 396, 413

– 414 , fn. 11 .)
DISPOSITION
Defendant s’ motion to vacate the judgment against Dr. Aragoni is denied.
Defendants’ appeal is dismissed

. The judgment is affirmed. Plaintiffs’ motion for
sanctions is denied. The parties are to bear their o wn costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

______________________________, Acting P. J. ASHMANN

- GERST

We concur:

____ ___________________________, J.

CHAVEZ

_______________________________, J.

HOFFSTADT