Filed 12/21/20 Mazed v. Leech, Tishman, Fuscaldo & Lampl CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MOHAMMAD A. MAZED

Plaintiff and Appellant,

v.

LEECH, TISHMAN, FUSCALDO 

& LAMPL, LLP, et al.,

Defendants and Respondents.

 B297193

 (Los Angeles County

Super. Ct. No. BC654452)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Joseph R. Kalin and Robert S. Draper, 

Judges. Affirmed.

The David Epstein Law Firm and David G. Epstein for 

Plaintiff and Appellant. 

Nemecek & Cole, Jonathan B. Cole, Mark Schaeffer and 

Vikram Sohal for Defendants and Respondents.

____________________
2

Mohammad A. Mazed appeals the trial court’s rejection of 

his legal malpractice claim. Two fatal procedural problems infect 

his appeal. First, Mazed relies solely on an appellate argument 

he did not properly brief in the trial court. Second, Mazed’s 

appellate briefing is deficient. We therefore affirm.

I

Plaintiff and appellant Mohammad Mazed had a financial 

dispute with his former patent lawyer, respondent Ivan Posey. 

(We refer to Posey and his law firm, respondent Leech, Tishman, 

Fuscaldo & Lampl, LLP, collectively as Posey.) Posey asked 

Mazed to pay about $20,000 in legal fees. Mazed claimed he 

owed nothing and sued for a declaratory judgment saying so. 

Mazed’s complaint had nine counts. One was for legal 

malpractice. 

Mazed filed a first amended complaint. It is the operative 

pleading. This complaint alleged three areas of dispute. First, 

Mazed continued to seek a declaratory judgment he owed Posey 

nothing. Second, Mazed claimed Posey owed Mazed money for 

serving as Posey’s expert witness. Third, Mazed increased the 

number of his legal malpractice allegations to three: 

1. Posey did not properly act upon a notice. 

2. Posey made errors in materials Posey submitted to 

the patent office on Mazed’s behalf. 

3. Posey injured Mazed through “diminution of foreign 

patent rights.” 

Posey responded with a counterclaim against Mazed, 

asserting Mazed did owe Posey money. 

Posey moved for summary judgment and adjudication. 

Mazed filed an 11-page brief in opposition, with voluminous 

attachments. 
3

The trial court granted Posey’s motion on Mazed’s third 

malpractice count, which is all that remains at issue. The court 

ruled Posey’s alleged malpractice could not have harmed Mazed 

because the time to seek international patent protection passed 

before Mazed retained Posey. 

Mazed moved for reconsideration. The trial court denied 

this motion because Mazed could not point to a new fact or a new 

legal development since the court’s summary adjudication ruling. 

Mazed appealed. His lone issue on appeal focuses only on 

his third legal malpractice issue; he excludes other issues. 

The substance of Mazed’s appellate argument is the trial 

court misapplied patent law by starting a time clock too soon. 

The trial court, Mazed submits, started a 12-month clock on a 

date in 2006. Mazed argues the proper date was 2012. Key to 

this argument is Mazed’s contention his patent application was a 

particular kind called a continuation-in-part application. A 

continuation-in-part adds new matter to an earlier patent 

application. (See, e.g., The United States Patent and Trademark 

Office, Manual of Patent Examining Procedure, § 201.08

Continuation-in-Part Application

<https://www.uspto.gov/web/offices/pac/mpep/s201.html#ch200_d

1ff71_198a2_222> [as of Dec. 17, 2020], archived at 

<https://perma.cc/CHY4-YK2W>.) Mazed says this fact about his 

patent application moved the timing trigger from 2006 to 2012. 

II

Mazed appeals on the basis of his continuation-in-part 

argument, but his brief in the trial court did not state this 

argument. In the trial court, Mazed unjustifiably reserved his 

briefing on this topic to a motion for reconsideration. The trial 
4

court properly denied Mazed’s motion for reconsideration. We 

therefore affirm. 

Posey identifies this problem with Mazed’s appeal. Posey 

quotes the entirety of the pertinent bit of Mazed’s opposition brief 

from the trial court. This bit consists of four sentences only. 

None of Mazed’s four sentences mentions continuations-in-part, 

or indeed any legal authorities at all.

This problem is lethal, for we may review only those 

material issues framed by the pleadings and presented to the 

trial court. (Martinez v. Scott Specialty Gases, Inc. (2000) 83 

Cal.App.4th 1236, 1244.) An appellant must raise its point in the 

trial court before an appellate court will review that point. (See 

Litt v. Eisenhower Medical Center (2015) 237 Cal.App.4th 1217, 

1222.) For this reason, we generally will not consider an 

argument or theory if it is raised for the first time on appeal. 

(American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 

Cal.App.3d 1271, 1281.) In reviewing attacks on summary 

judgments, the appellate court must disregard possible theories 

appellants did not fully state to the trial courts. (Havstad v. 

Fidelity Nat. Title Ins. Co. (1997) 58 Cal.App.4th 654, 661.) 

These principles of appellate review doom Mazed’s appeal, 

for Mazed never briefed his continuation-in-part argument to the 

trial court.

Only after the trial court granted summary judgment did 

Mazed brief his continuation-in-part argument. This was in 

Mazed’s motion for reconsideration. 

This was too late. For vital reasons, the law severely 

restricts the proper scope of reconsideration motions.

The proper scope for reconsideration is designedly small. 
5

Reconsideration motions are proper when the law has 

changed after a court has ruled, as when an appellate court 

issues a new precedent that changes a trial court’s legal analysis. 

And reconsideration motions can also be proper if facts come to 

light that a diligent party could not previously have discovered. 

For sound reasons, courts strictly enforce this essential 

requirement of diligence. (E.g., Even Zohar Construction & 

Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 

830, 839–840.)

Motions for reconsideration are improper when the losing 

party merely thinks up a snappier response after the court has 

ruled and the battle is lost. 

The trial court properly applied this law to deny Mazed’s 

motion for reconsideration: Mazed had no justification for failing 

to put his continuation-in-part argument in his original briefing. 

This ruling was correct. Mazed recounts but does not attack this 

ruling. 

Indeed, Mazed could not separately appeal the denial of his 

reconsideration motion. (Code Civ. Proc., §1008, subd. (g) [an 

order denying a motion for reconsideration is not separately 

appealable, and can be appealed only if the order that was the 

subject of the motion for reconsideration is appealable and indeed 

has been appealed); see Powell v. County of Orange (2011) 197 

Cal.App.4th 1573, 1576–1577.) 

For this additional reason, it was essential for Mazed to 

brief his continuation-in-part argument in opposition to Posey’s 

summary judgment motion.

In his reply to us, Mazed instead says he did place his 

continuation-in-part argument before the trial court. Mazed 
6

asserts the record “reflects these concepts.” This euphemism is 

inadequate. 

Mazed’s lawyer had to do more than create a record that 

“reflects these concepts.” He had to do what lawyers always do 

during the summary judgment process: write a brief identifying 

the pertinent legal authorities and showing how these legal 

authorities control the dispute at hand. 

Something outside the brief attached to something else that 

reflects concepts is not sufficient. 

We demonstrate this point by examining the two record 

citations Mazed offers to support his claim that the trial court 

record reflects the concept of his continuation-in-part argument. 

Neither is sufficient.

Mazed’s first record cite is to a three-sentence paragraph of 

a declaration accompanying Mazed’s summary judgment 

opposition. This paragraph contains no legal citations. The 

declaration is from a non-lawyer: it is from Mazed himself. And 

this citation is to a declaration, which is no place for argument of 

any sort. Declarations are witness testimony in written form. 

Witnesses testify to facts. The lawyers, not the witnesses, 

present the law. Mazed’s opposition brief in the trial court lost 

sight of this fundamental.

Mazed’s second citation is to an exhibit to Mazed’s 

declaration. This exhibit is a one-page note to “Mohammad 

Mazed” from one “Alexander Schlee.” The note starts off “Dear 

Mohammad” and ends with “Best regards, Alex.” The note 

contains no citations to cases, statutes, or treaties. It consists of 

unsubstantiated assertions. This exhibit to a declaration cannot 

stand in for legal reasoning in a brief.
7

III

There is a second problem as well. Mazed’s appellate 

briefing is deficient. 

A fundamental of appellate review is that we begin by 

presuming the trial court reached the right result. (E.g., 

Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) We do not 

presume trial courts always err; that approach would run against 

common sense and common experience. Thus the appellant must 

demonstrate error or will lose the appeal. (Id. at p. 609 

[appellate court affirms judgment if appellant cannot overcome 

this presumption].) 

To demonstrate error, an appellant must supply the 

reviewing court with cogent argument supported by legal 

analysis and citation to the record. (United Grand Corp. v. 

Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (United 

Grand).) 

We are not obliged to create arguments for an appellant, 

nor are we obliged to speculate about which issues counsel intend 

to raise. (United Grand, supra, 36 Cal.App.5th at p. 153.) We 

are not bound to develop appellants’ arguments for them. (In re 

Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)

We disregard conclusory arguments a brief does not 

support with pertinent legal authority. We likewise disregard 

arguments that fail to disclose the reasoning by which appellants 

reached the conclusions they want us to adopt. (United Grand, 

supra, 36 Cal.App.5th at p. 153.) 

The record in this case consists of nine volumes containing 

2,139 pages. Standard principles of appellate review required 

Mazed to give page citations so an appellate court knows where 

to go in these thousands of pages. 
8

We give some examples of how the appellant’s briefing did 

not comply with standard principles of appellate review.

Mazed presents some of his argument through figures and 

diagrams. He labels his Figure 1 as “USPTO Record of Mazed’s 

Patent and Also Presented In Mazed’s Declaration On April 29, 

2018.” This caption does not give a page citation to the record 

where this material is to be found, if it is indeed in the record. 

The figure shows a portion of one page of a patent, with the 

patent’s number excluded. There is no record citation for this 

patent or statement this patent is in the record. 

The next page of this brief makes assertions about “eight 

new inventions” that supposedly are the new matter that is 

important to the logic of Mazed’s argument. There are no record 

citations. 

The brief repeats this unsubstantiated assertion a few 

pages later: again there is no record citation. 

Mazed’s brief makes further assertions about the 

international patenting process. Again there are no legal or 

record citations. 

Another figure appears in this brief. The brief gives a 

hyperlink as the source of this material, asserting the link leads 

to a website of the “Israeli Government Patent Office.” This 

raises questions the brief does not answer. Is this case governed 

by Israeli law or practice? If so, why? If Israeli law or custom 

does not govern here, why is this information pertinent? 

The brief next offers a block quotation of “Rule 4.10.” 

These pages do not identify the source of this material or give a 

citation allowing readers to validate the accuracy of the 

quotation. The next pages follow up with an unidentified block 

quote of “Rule 4.11.” The final paragraph on the page asserts 
9

“This Rule means that . . . .” without further identification of 

what this rule is, where it is to be found, why that meaning is 

pertinent to this case, or what legal authority should prompt the 

reader to credit this assertion about the meaning of this 

unidentified rule. 

Soon there is another diagram of mysterious provenance. 

It is a decisionmaking flow chart. Is this flow chart a visual aid 

crafted by Mazed and his attorney? Or is it from some 

publication? Is Mazed suggesting the court should defer to this 

diagram as an authoritative statement of law? If so, what is the 

source of that legal authority? And where is the citation? 

It is possible, but would serve no purpose, to continue this 

litany. Mazed’s briefs are not sufficient to show error. (United 

Grand, supra, 36 Cal.App.5th at p. 153.) 

IV

We deny Mazed’s request for judicial notice as moot. The 

same goes for Posey’s motion to strike. 

DISPOSITION

We affirm the judgment and award costs to respondents. 

WILEY, J.

We concur: 

BIGELOW, P. J. 

STRATTON, J.