Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC379087. Ralph W. Dau, Judge.
Shanel Stasz in pro. per. for Appellant.
K & L Gates and Ronald W. Stevens for Respondent.
ZELON, J.
Appellant Shanel Stasz appeals the judgment entered in favor of plaintiff and respondent Park Wellington Homeowners’ Association after a court trial. Appellant asserts that the judgment was inconsistent with the evidence, and that the court erred by denying her a continuance, by proceeding in violation of a bankruptcy stay, and by allowing counsel, who Stasz believed had not properly appeared, to represent respondent at trial. For the reasons set forth below, we find appellant has not demonstrated that the trial court either abused its discretion or erred. We affirm.
FACTUAL SUMMARY
Shanel Stasz (Stasz) was a resident and former officer of the Park Wellington Homeowners’ Association (PW). PW filed the complaint in this matter on October 15, 2007; the operative Third Amended Complaint was filed on March 23, 2009. That complaint alleged seven causes of action against Stasz for: conversion; fraud; constructive fraud; negligence; breach of fiduciary duties; breach of contract; and conspiracy. Although Stasz had been represented by counsel early in the proceedings, counsel had been relieved on May 30, 2008, and she represented herself at the final status conference on July 20, 2009. At that conference, Stasz agreed to reformat her exhibit list and to file an amended witness list, and objected to association of counsel for PW. She estimated two to three days for the presentation of her case, and advised the court she would be filing a motion to dismiss.
The docket indicates a number of procedural matters that were adjudicated prior to the filing of the Third Amended Complaint, including the issuance of a preliminary injunction. Some of those pleadings were placed in the record by Respondent’s motion to augment. Although the record indicates Stasz filed an answer to the operative complaint on July 8, 2009, that document is not included in the record.
The parties returned to the court on July 29, 2009 for trial. The court denied Stasz’s motion to dismiss, which she had filed the day before. Stasz had served the motion by fax on July 27, and PW filed its opposition on July 28. In the motion, Stasz sought, in the alternative, to continue the trial because of medical problems arising from an accident in June 2009, and to substitute legal counsel. Neither of these issues was raised on the record at the final status conference, nor was either supported by any evidentiary showing in the motion other than a single statement in Stasz’s declaration: “I was in a car accident in June of 2009, I am in pain and I am currently having Physical Therapy twice a week.”
When the court indicated it was denying the continuance, Stasz indicated that she was on medication and could not go forward that day. The court requested documentation, deemed what Stasz provided insufficient, and denied the motion to continue. Stasz requested a break, which the court denied. Stasz then stated “Well, I’m going to take one”, and left the courtroom. The court, indicating there had been a break since 9:00 a.m., ordered counsel to proceed. The trial took place on July 29 and 30, 2009 in appellant’s absence, as she failed to return to the courtroom. No transcript of the trial has been provided to this court. As a result, we will not summarize the issues raised by the complaint.
Stasz also indicated she had counsel but that he or she was not available. She provided no documentation or statement under oath in this regard.
On August 6, 2009, the court issued its tentative decision, ordering judgment against Stasz in the amount of $103,068.74, on findings of conversion and breach of fiduciary duty. The court entered its judgment on August 21, 2009, and Stasz timely filed a motion for new trial. In that motion, Stasz asserted for the first time that her voluntary bankruptcy case stayed the proceedings, and the judgment was therefore invalid. The court heard argument on the motion on October 7, 2009, and took the matter under submission. The court denied the motion on October 13, 2009. Stasz timely appealed.
According to the record, the Chapter 7 bankruptcy was filed on October 13, 2005; the pleadings did not list PW as a creditor, nor give notice to them. Stasz received a discharge on March 6, 2007.
Stasz asserts four grounds for appeal: the denial of the continuance was error, and a violation of due process; the court was without jurisdiction because of the automatic bankruptcy stay; the judgment is inconsistent with the facts; and the judgment is void because counsel for PW was not properly in the case. None of these arguments provides grounds for reversal of the judgment.
DISCUSSION
I. The Court Did not Abuse its Discretion By Denying the Continuance
Stasz asserts that the trial court abused its discretion, and deprived her of her constitutional rights, by refusing her request, filed one day before the day of trial, to continue the trial because of her physical condition and to allow her to be represented by counsel. The written request was not supported either by documentation of her physical condition or by any showing that specific counsel had been retained, had a reason to request a continuance, or intended to represent Stasz. At the hearing, she provided only a handwritten note, which neither indicated that she could not proceed, nor provided details concerning her condition. Moreover, she had not indicated during the final status conference, held one week earlier, that she had a medical condition that was disabling her, or that she intended to retain counsel. Instead, she gave every indication of being ready to proceed with the properly noticed trial.
The motion in which the request was contained was not prepared by the new counsel, and made the request for continuance as an alternative. Served two days before trial, it was made without a request for an order shortening time, and provided only one day for PW to prepare a response.
Stasz also asserts, without authority, that the court violated canons of judicial ethics in proceeding with the trial after she voluntarily absented herself from the courtroom. We do not reach those assertions: “Mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review.” (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078.)
The determination to grant – or deny – a continuance is “committed to the sound discretion of the trial court.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) Trial continuances are granted sparingly, and only where the moving party makes an affirmative showing of good cause. (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169; Cal. Rules of Court, rule 3.1332(c).) A party seeking a continuance of the trial date “must make the request for a continuance by a noticed motion or an ex parte application... with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” (Cal. Rules of Court, rule 3.1332(b).)
Stasz neither made a proper and timely motion, nor supported it in accordance with the rules of court. The trial court did not abuse its discretion in denying the motion.
II. The Bankruptcy Proceedings Did Not Divest the Trial Court of Jurisdiction
As set forth above, Stasz had filed a voluntary Chapter 7 bankruptcy proceeding in 2005; although the proceeding appeared to have been ongoing at the time of trial, Stasz had received a discharge in 2007, prior to the commencement of this action. PW was neither listed as a creditor nor given formal notice of the proceedings and, while Stasz asserts that PW was aware of the bankruptcy prior to filing its complaint, the record does not demonstrate when she believes they became aware. Stasz nonetheless asserts that the trial court could not proceed with the case because it was stayed as a matter of law, and, in any event, to the extent the judgment includes pre-petition debts, they were discharged and could not form the basis for the judgment.
This court requested supplemental briefing from the parties after the appeal was fully briefed to address the bankruptcy issues, specifically concerning the stay and whether the failure to give notice prior to discharge rendered the claims at issue non-dischargeable. In her response, Stasz did not cite to any evidence in the record establishing that PW had actual notice prior to her discharge.
It is the obligation of the debtor to give timely notice to the creditors of the bankruptcy sufficiently in advance of the time by which claims, or requests for non-dischargeability, must be filed. (Ellett v. Stanislaus (Ninth Cir. 2007) 506 F.3d 774, 777-780.) The debtor “seeks to free itself of an obligation by means of a federal court judgment. As a matter of due process, the person whose entitlement to money from the debtor will be destroyed by the judgment is entitled to notice.” (In re Maya Construction Company (Ninth Cir. 1996) 78 F.3d 1395, 1399.)
It is further the debtor’s obligation to take action when it believes that proceedings either violate the automatic stay (11 U.S.C. § 362) or seek to collect debts that have been discharged. Under California law, a party asserting a stay must give proper notice to the court and the parties; this applies specifically to bankruptcy stays. (Cal. Rules of Court, rule 3.650 (a), (b)(4).) As a matter of federal law, the debtor has several options in a case, like this one, where an action is filed after discharge: to assert the discharge as an affirmative defense in the lawsuit; to remove the lawsuit to federal court; to file a complaint in the bankruptcy court to determine dischargeability; or to enforce the discharge injunction in bankruptcy court. (In re Mendiola (Bankr. N.D.Ill. 1989) 99 B.R. 864, 870; In re Kewanee Boiler Corp. (Bankr. N.D.Ill. 2002) 270 B.R. 912, 918.) Stasz took none of these actions here.
Because her answer is not in the record, we cannot conclude that it included an affirmative defense.
Moreover, even had Stasz taken any of these actions, section 523(a) of the Bankruptcy Code (11 U.S.C.), governs exceptions to the general rule that, on discharge under the Bankruptcy Code, all pre-petition debts are discharged, and may not be collected by creditors. As relevant here, the debtor is not discharged if the claim is not listed or scheduled by the debtor in time to permit the creditor to request a determination of non-dischargeability. Because the failure to seek such a determination ordinarily results in the debt being discharged, the creditor, with knowledge of the proceedings, must file a complaint in the bankruptcy court within 60 days after the first meeting of creditors. The kinds of debts to which this exception applies include debts arising from intentional wrongdoing, including the breach of fiduciary duty. (11 U.S.C. § 523(a)(3)(B); Beezley v. California Land Title (Ninth Cir. 1993) 994 F.2d 1433, 1435-1436 (O’Scannlain, concurring) [intentional tort debts exempted from discharge “notwithstanding the creditor’s failure to file a timely complaint under section 523(c) if the creditor did not know about the case in time to file such a complaint”]; see also In re Nielsen, 383 F.3d 922, 926 (9th Cir. 2004) [adopting the reasoning of the concurrence].) Thus, in this case, unless Stasz demonstrates actual timely knowledge by PW, the debt is not discharged. (Beezley v. California Land Title, supra, at p. 1437.)
In this case, the date set for the filing of a claim for non-dischargeability was February 4, 2006. Stasz bears the burden of demonstrating that PW had knowledge of the bankruptcy prior to this date; as the record does not do so, she has not met her burden of demonstrating error. “If an appeal is pursued, the party asserting trial court error may not then rest on the bare assertion of error but must present argument and legal authority on each point raised. (People v. Stanley (1995) 10 Cal.4th 764, 793.) This latter rule is founded on the principle that an appealed judgment is presumed correct, and appellant bears the burden of overcoming the presumption of correctness. [Citation.]” (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650.)
The failure to give notice, or demonstrate knowledge, also defeats the other claims of error. While a petition in bankruptcy does act as an automatic stay of judicial proceedings against the debtor (11 U.S.C. § 362(a)(1)), the stay expires when discharge is granted. Ordinarily, it is replaced by a statutory injunction (11 U.S.C. § 524). However, that injunction only prohibits actions involving dischargeable debts; it does not apply to non-dischargeable debts and creditors may pursue post-discharge actions. (Johnson v. JP Morgan Chase Bank (E.D. Cal. 2008) 395 B.R. 442, 449.) Where, as in Johnson, and here, the creditor commences an action asserting non-dischargeable debts after the discharge, the creditor may properly proceed with its claims. The trial court did not err.
III. Appellant’s Other Enumerated Grounds Are Not Before The Court
A. Appellant failed to provide a record sufficient to support review
Appellant asserts that the judgment is not consistent with the facts, and that the facts do not support the findings of the court. The record, however, does not contain the transcript of the trial in this matter. As a result, she has not demonstrated a basis for reversal.
Appellant filed a Request for Judicial Notice on September 27, 2010, to place before this court a letter written on behalf of PW. Because the substance of the underlying case is not before us, we deny the request.
“Appealed judgments and orders are presumed correct, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Consequently, plaintiff has the burden of providing an adequate record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Failure to provide an adequate record on an issue requires that the issue be resolved against plaintiff. (Id. at pp. 1295-1296.)” (Hernandez v. California Hospital Medical Center (2002) 78 Cal.App.4th 498, 502.)
B. Appellant Failed to Provide A Legal Basis for her Argument that Counsel Appeared Improperly
Appellant also asserts that the court erred in allowing PW to be represented at trial by attorney Stevens, on the grounds that he had not properly entered an appearance after having substituted out at an earlier date. However, this argument is not supported by any citation to legal authority, either in the opening or reply briefs. As such, she has waived the issue.
“When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. [Citations.]” (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
“[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant’s... issue as waived.” (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.
We concur: WOODS, Acting P. J.JACKSON, J.