Aljabban v. Fontana Indoor Swap Meet, Inc. (2020)

Citation: Aljabban v. Fontana Indoor Swap Meet, Inc. (2020)
Parent Document: Aljabban v. Fontana Indoor Swap Meet, Inc. (2020)
Jurisdiction: California (state)
Effective Date: 2020-09-10
Original Source: https://www.courtlistener.com/opinion/4784084/aljabban-v-fontana-indoor-swap-... ↗

Full Text

3,446 chars

17     For the first time in his appellate reply brief Aljabban challenges the
trial court’s decision on the causes of action for civil assault and battery, and
for negligent and intentional interference with prospective economic
advantage. Specifically, Aljabban argues that in light of the evidence
presented at trial, defendants should have been found liable for civil assault
and battery, and punitive damages should have been assessed. Further, he
argues that “seizing plaintiffs’ equipment deprived them of the opportunity to
sell or reallocate it and constituted intentional and negligent interference
with prospective economic advantage.” (Emphasis and capitalization
omitted.) Based on “ ‘ “[o]obvious considerations of fairness,” ’ ” we will not
consider an argument made for the first time in the reply brief. (Reichardt v.
Hoffman (1997) 52 Cal.App.4th 754, 764.) Moreover, even were we to
consider the issues, Aljabban has presented no reason for us to disregard the
trial court’s finding that there was no merit to the cause of action for civil
assault and battery because Ramirez was credible when he testified that he
had no physical contact with Carrasco and he did not assault Carrasco’s
mother. Further, to the extent Aljabban now argues that defendants engaged
in interference by not allowing him and Carrasco to take the Items when they
vacated the premises, we have concluded that the Items were permanent
fixtures that were required to remain in space H-2.
                                           40
in “taunting, mockery and distraction” by making faces and other gestures
while Carrasco and Aljabban were testifying. He also claims that defendants’
attorney used gestures to indicate how Shapiro should answer certain
questions during his testimony, and that Shapiro made gestures to
defendants’ witness in the same manner. In addition, without any evidence
in the record to support the contention, Aljabban claims that in a
conversation that was held “off the record,” the trial court stated on the
second day of trial that “Plaintiffs should have sued the former vendor who
sold the salon to them,” which plaintiffs understood “to mean that they had
lost the case,” causing them to “bec[o]me discouraged” and emboldening
Shapiro’s misbehavior.
      As Aljabban points out, the alleged distracting behavior by Shapiro in
the courtroom was brought to the trial court’s attention twice during the
trial. First, during a break in Carrasco’s testimony, plaintiffs’ counsel stated
that he had called for a break “because I noticed unusual behavior on the
part of the witness, and she indicated that she was being—each time she was
receiving some signs and mocking from the defendant in the back, and that
was distracting [to] her [ability to] answer and concentrate and give
testimony. Whatever it’s worth, I want to bring that to the Court’s attention.
I don’t know if she needs to sit here or face that way to make sure . . . we can
move this smoothly. And the reason it is important is something even worse
happened during the deposition.” Plaintiffs’ counsel then started to explain
what happened during the deposition. The trial court stated, “We don’t need
to go there,” and then indicated, “Let’s go ahead.” Plaintiffs’ counsel did not
ask the trial court to take any action, and it is unclear if Carrasco physically
shifted her position, as plaintiffs’ counsel suggested, so that she could no
longer see Shapiro.

Other Sections in This Document (85)

Full Text