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Peter Halamandaris v. Steven A. Sephos et al

January 27, 2011

PETER HALAMANDARIS, PLAINTIFF AND APPELLANT,
v.
STEVEN A. SEPHOS ET AL., DEFENDANTS AND RESPONDENTS.



Super. Ct. No. CV023970

The opinion of the court was delivered by: Hull ,j.

Halamandaris v. Sephos CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

San Joaquin

Plaintiff Peter Halamandaris appeals from a judgment dismissing his action against defendants Steven A. Sephos, et al., due to dilatory prosecution. The trial court ruled the case was subject to mandatory dismissal for failure to bring it to trial within five years, and also dismissed the case for dilatory prosecution under the three-year discretionary dismissal statute. (Code Civ. Proc., §§ 583.310, 583.410; further section references are to this code.) We affirm the judgment.

FACTS AND PROCEEDINGS

The record on appeal is incomplete, making it difficult to construct a coherent narrative of the relevant procedural facts. As the appellant, plaintiff bore the burden to provide an adequate record to support his contentions of error. (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) "To the extent the record is incomplete, we construe it against him." (Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498.) Further, plaintiff has compounded the confusion in the record by making assertions that are not supported by record citations. We deem these assertions to be forfeited. (See Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

On June 18, 2004, Peter and Anna Halamandaris sued Steven A. Sephos, Dual Arch International, Inc., and several Does (collectively, defendant), alleging fraud and related claims arising from a real estate financing transaction.

Plaintiffs filed a case management statement on November 23, 2004, estimating a five-day court trial was required, and that discovery should be complete by April 2005. A case management statement filed on January 14, 2005, reiterated the estimated date for completing discovery.

A minute order dated May 31, 2005, indicates no courtrooms were available. A minute order dated September 30, 2005, indicates a court trial was continued to January 23, 2006, at the request of counsel.

On April 11, 2006, Anna Halamandaris filed a substitution of attorney, indicating she was representing herself, but no substitution was filed for Peter Halamandaris.

On January 15, 2009, attorney Michael E. Platt substituted in, purportedly as counsel for both plaintiffs. It appears Peter Halamandaris bought the right to continue this action out of bankruptcy. He is the only appellant. Accordingly, we omit further references to Anna Halamandaris, the other original plaintiff in this case.

Also on January 15, 2009, Mr. Platt moved to specially set the case for trial, to avoid dismissal for dilatory prosecution. In a supporting declaration, he explained that prior counsel had been appointed to the bench, and plaintiffs were without counsel until Mr. Platt substituted in. Mr. Platt conceded nothing had been done to press this lawsuit since plaintiff began self-representation, but asserted this was due to representations by defendant that ...


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