Monday, August 24, 2020
Page 1
Court of Appeal:
Attorney Precluded From Raising Any Issues on Appeal Based on Violation of Rule
By a MetNews Staff Writer
The Court of Appeal for this district on Friday declined to use its discretion to permit a personal injury attorney to raise issues on appeal in his own traffic-accident case because of his failure to comply with a provision of the state Rules of Court requiring that all issues be specified in the notice designating the record on appeal where only portions of a reporter’s transcript are designated.
Presiding Justice Tricia A. Bigelow of Div. Eight wrote the unpublished opinion which faults Pasadena attorney Sevan Movsesian for his noncompliance with California Rules of Court, rule 8.130(a)(2). That rule provides that if only a portion of the reporter’s transcript is designated, “the notice must state the points to be raised on appeal; the appeal is then limited to those points unless, on motion, the reviewing court permits otherwise.”
Bigelow said:
“Enforcement of Rule 8.130(a)(2) does not undermine the policy of deciding appeals on their merits….
“Here, Movsesian designated a partial reporter’s transcript that did not include all the testimony given in the trial court, but he failed to state in the notice any points to be raised on appeal. As Movsesian concedes, under the plain language of Rule 8.130(a)(2), he is precluded from raising any points on appeal, unless we permit otherwise. We decline to do so.”
Defect Pointed Out
On April 18, 2019, three days after Movsesian’s lawyer on appeal, Robert Dourian, filed the notice designating the record on appeal, the defendant, Lilian Ourishian, filed a motion in the Los Angeles Superior Court pointing to the deficiency.
On Aug. 23 of that year, Oregon attorney Sharon J. Arkin substituted in as lead appellate counsel, and on Dec. 2—three days before the appellant’s opening brief was due—she sought a stipulation from Ourishian’s counsel that the full transcript be filed. The lawyer declined, and pointed to the failing to set forth the issues on appeal.
Arkin sought leave of Div. Eight to file the entire transcript, which was denied.
It was not until May 20, 2020, on the same day that Movsesian filed his reply brief, that a motion was made asking the court to overlook the noncompliance with Rule 8.130(a)(2).
‘Egregious and Inexcusable’
Bigelow commented:
“Movsesian’s failure to comply with Rule 8.130(a)(2) was egregious and inexcusable. Ourishian’s objection brought the issue to his attention more than a year ago, and only a few days after he filed the deficient designation of record. Movsesian’s excuses for not addressing the issue then—that the attorney who received the objection did not understand the significance of the issue and just assumed another attorney would take care of it—are far from compelling. Indeed, they strain credulity.
“Even if the claims are true, Movsesian nonetheless fails to explain why his lead appellate counsel, Arkin, did not address the issue immediately after it was brought to her attention in December 2019. Nor does he explain why, after the issue was raised for the third time in the respondent’s brief, he waited three additional months to finally address it.”
Contradiction Noted
In seeking to have the rule violation forgiven, Movsesian portrayed the breach as inconsequential because the appeal can be decided on the record that was designated. That, Bigelow said, contradicts the assertion by Arkin in seeking permission to file the full transcript that the “entire transcript is necessary to demonstrate the trial court’s abuse of discretion and resulting prejudice from its denial of the motion for new trial.”
The presiding justice declared:
“For these reasons, we decline to exercise our discretion to overlook Movsesian’s complete failure to comply with Rule 8.130(a)(2). Movsesian, therefore, is precluded from raising any points on appeal.”
She nonetheless examined the contentions, and found each to be unmeritorious.
The opinion affirms the judgment based on a jury award of $44,458.45 to Movsesian—which he proclaimed to be inadequate—and Los Angeles Superior Court Judge Victor E. Chavez’s denial of a motion for a new trial and his award of costs to Ourishian.
She had made two statutory offers of compromise, once in February 2018 for $50,000 and the second in October 2018 for $80,000. Given that Movsesian declined both offers, which were greater than the amount he ultimately recovered at trial, Chavez awarded Ourishian $54,617.42 in costs, pursuant to Code of Civil Procedure §998.
The case is Movsesian v. Ourishian, B296836.
Counsel for Movsesian were Arkin and Dourian, as well as Z. Sondra Derderian, who works for Dourian, of Law Offices of Robert Dourian, and Pasadena attorney Nancy P. Doumanian. Representing Ourishian were Kathryn Albarian and Michael Park of the Glendale firm of Mark R. Weiner & Associates.
Copyright 2020, Metropolitan News Company