Filed 5/31/16 Wertheim, LLC v. Omidvar CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

WERTHEIM, LLC,

Plaintiff and Appellant,

v.

OLIVER OMIDVAR et al.,

Defendants and Respondents.

 B257473

 (Los Angeles County 

 Super. Ct. No. BC410386)

APPEAL from the judgment of the Superior Court of Los Angeles County. 

Joseph R. Kalin, Judge. Affirmed.

The Newell Law Firm and Felton T. Newell for Plaintiff and Appellant.

Buehler & Kassabian, George W. Buehler; Diem Law and Robin L. Diem for 

Defendants and Respondents.

* * * * * * * * * *
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Plaintiff and appellant Wertheim, LLC appeals from the entry of judgment, after a 

jury trial, in favor of defendants and respondents Oliver Omidvar, Parviz Omidvar and 

Currency Corporation. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

Plaintiff filed this action for interference with contract, interference with 

prospective business advantage and trade libel in March 2009. Plaintiff tried the case 

only on the cause of action for interference with contract.

Plaintiff contended that in September 2006, defendants entered into three line of 

credit agreements with third party Leonard Borisoff, a songwriter. As collateral for the 

credit agreements, Mr. Borisoff gave defendants a security interest in certain royalty 

income owed to Mr. Borisoff. In 2007, plaintiff entered into a contract with Mr. Borisoff 

in which it purchased his royalty and income rights. The purchase contract included an 

assignment of any rights Mr. Borisoff may have had against the defendants. Plaintiff 

contended the credit agreements between defendants and Mr. Borisoff were void and 

unenforceable and interfered with plaintiff’s contract with Mr. Borisoff. 

Trial began in April 2014. The proceedings were not reported by a court reporter. 

Apparently, at the close of evidence, plaintiff moved for a directed verdict on the grounds

the evidence established defendants’ credit agreements with Mr. Borisoff were void and 

unenforceable. The motion was denied. It is not included in the clerk’s transcript on 

appeal. The court’s order is not included in the clerk’s transcript either. 

The jury found in favor of defendants. Separate, but identical, verdict forms were 

submitted regarding each defendant. The first question on each special verdict form 

asked: “Did a valid contract exist between plaintiff Wertheim LLC and Leonard 

Borisoff?” The jury answered “no” on each verdict form. The special verdict forms

directed that in the event the jury answered “no” to question No. 1, then it should sign 

and return the verdicts. Judgment in favor of defendants was entered on May 20, 2014. 

Plaintiff moved for a new trial, contending the court erred by denying its motion 

for directed verdict, by failing to instruct the jury on certain laws, including various 

provisions of the Financial Code which demonstrated the illegality of defendants’ 
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agreements with Mr. Borisoff, and by admitting various defense exhibits into evidence,

including some fabricated exhibits, which had not been disclosed in discovery. The 

motion was denied. 

This appeal followed. 

DISCUSSION 

Plaintiff contends the trial court erred by denying its motion for directed verdict 

and its motion for a new trial. The appellate record on which plaintiff asks this court to 

resolve these two contentions does not contain copies of the briefing or the court’s order 

related to the motion for directed verdict. The appellate record also does not include any 

reporter’s transcript from any portion of the trial. It appears from minute orders during 

the trial that no reporter was present to transcribe the proceedings. Plaintiff did not avail 

itself of the option to submit a settled statement in lieu of a reporter’s transcript. (Cal. 

Rules of Court, rule 8.137.) The lack of an adequate record of the trial proceedings is 

fatal to plaintiff’s appeal. 

“ ‘It is the duty of an appellant to provide an adequate record to the court 

establishing error. Failure to provide an adequate record on an issue requires that the 

issue be resolved against appellant. [Citation.]’ [Citation.]” (Hotels Nevada, LLC v. 

L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348; accord, 9 Witkin, Cal.

Procedure (5th ed. 2010) Appeal, § 628, pp. 704-706.) This is so because it is a “cardinal 

rule of appellate review that a judgment or order of the trial court is presumed correct 

and prejudicial error must be affirmatively shown. [Citation.] ‘In the absence of a 

contrary showing in the record, all presumptions in favor of the trial court’s action will be 

made by the appellate court. “[I]f any matters could have been presented to the court 

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

such matters were presented.” ’ [Citation.] This general principle of appellate practice is 

an aspect of the constitutional doctrine of reversible error. [Citation.] ‘ “A necessary 

corollary to this rule is that if the record is inadequate for meaningful review, the 

appellant defaults and the decision of the trial court should be affirmed.” ’ [Citation.]” 
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(Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187, italics added

(Foust).)

Plaintiff argues there are issues of law that can be resolved solely by resort to the 

pertinent contracts, copies of which are contained in the record. That is not correct.

Plaintiff challenges two orders of the court made during trial: denial of plaintiff’s motion 

for directed verdict and denial of plaintiff’s motion for a new trial. Both of those motions 

concerned arguments made by plaintiff based on the evidence produced at trial, most 

notably evidence which plaintiff contends demonstrated the illegality of the loan 

agreements between defendants and Mr. Borisoff. We cannot resolve the issues raised by 

plaintiff without all of the evidence received at trial. Because the limited record 

presented by plaintiff precludes meaningful review, we must affirm the decision of the 

trial court. (Foust, supra, 198 Cal.App.4th at p. 187.) 

Moreover, plaintiff fails to address the significance of the jury’s special verdict 

finding that plaintiff’s contract with Mr. Borisoff was not valid or enforceable. Plaintiff’s 

sole theory at trial was interference with contract, i.e., defendants’ alleged interference 

with the purchase and assignment agreement between plaintiff and Mr. Borisoff. In order 

to recover on a theory of interference with contract, a plaintiff must plead and prove 

“(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of 

this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of 

the contractual relationship; (4) actual breach or disruption of the contractual 

relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns & 

Co. (1990) 50 Cal.3d 1118, 1126, italics added.) The jury found against plaintiff on this 

essential element of its sole theory of recovery against defendants. Since the jury found 

there was no enforceable contract between plaintiff and Mr. Borisoff with which 

defendants might have interfered, it is of no concern to plaintiff whether defendants’

contracts with Mr. Borisoff were illegal or unenforceable. Plaintiff, therefore, also 

cannot show any prejudice to it flowing from the court’s refusal of its proposed 

instructions as to the validity of defendants’ agreements with Mr. Borisoff.
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DISPOSITION 

The judgment is affirmed. Defendants and respondents Oliver Omidvar, Parviz 

Omidvar and Currency Corporation shall recover costs on appeal. 

GRIMES, J. 

WE CONCUR:

RUBIN, Acting P. J. 

FLIER, J.