Opinion
B321298
10-17-2023
ART COLONY PROPERTY LLC, Plaintiff and Respondent, v. DUKE CHOI, Defendant and Appellant.
Eviction Defense Network and Simon Sherred for Defendant and Appellant. Gibson, Dunn & Crutcher, James P. Fogelman, Kahn Scolnick, and Alayna Monroe for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20STUD00387 Monica Bachner, Judge. Affirmed.
Eviction Defense Network and Simon Sherred for Defendant and Appellant.
Gibson, Dunn & Crutcher, James P. Fogelman, Kahn Scolnick, and Alayna Monroe for Plaintiff and Respondent.
LAVIN, J.
INTRODUCTION
This is an unlawful detainer proceeding between plaintiff and respondent Art Colony Property LLC (Art Colony) and its former tenant, defendant and appellant Duke Choi. Choi challenges the judgment rendered in favor of Art Colony after a bench trial on one of his affirmative defenses and a jury trial on the balance of the case. Choi only challenges the portion of the judgment relating to the bench trial, at which he apparently argued that Art Colony's failure to pay certain fees to the City of Los Angeles (the City) barred Art Colony from evicting him. He contends the court misinterpreted the applicable provision of the Los Angeles Municipal Code and should have found that his unit is a residential one subject to the fees at issue. He also appears to argue that Art Colony's purported delinquency is a complete bar to its unlawful detainer action against him.
To obtain a reversal of a judgment, an appellant must affirmatively establish both error by the trial court and prejudice from that error. And to facilitate appellate review of rulings made in the trial court, an appellant must provide the courts of appeal with a record containing all material relevant to the orders or judgment challenged in the appeal. Choi fails to meet these basic standards. Mainly, the record does not include a transcript of the bench trial or a suitable substitute nor does it include the operative pleadings. Further, the parties have submitted multiple requests for judicial notice in an improper attempt to expand the appellate record to include significant and relevant evidence not presented to the trial court.
We deny the requests for judicial notice and conclude the record is inadequate to support a reversal of the judgment. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Choi's requests for judicial notice filed on January 25, 2023 and June 5, 2023, as well as Art Colony's request for judicial notice filed May 1, 2023, are denied.
The relevant facts are few. On January 14, 2020, Art Colony initiated this unlawful detainer action against Choi in connection with his tenancy at 2401 S. Santa Fe Avenue in Los Angeles (the rental unit). Although the entire matter was initially set for a jury trial, the parties later stipulated to try one of Choi's affirmative defenses to the court. The parties informed the court that they would not be providing a reporter for the bench trial proceedings.
Prior to the bench trial, Choi submitted a trial brief asserting that the rental unit is a "residential rental property" as defined under the Los Angeles Housing Code portion of the Los Angeles Municipal Code. (L.A. Mun. Code § 161.100 et seq.)Owners of "residential real property" are required to pay a regulatory fee each year to fund property inspections and code enforcement by the Los Angeles Housing Department. (§§ 161.301, 161.352.) If the owner fails to pay the annual SCEP fee, a tenant may withhold rent until the fees are paid (at which point all current and withheld rent is payable) and may assert the owner's delinquency as an affirmative defense in an unlawful detainer action. (§§ 161.903.2, 161.903.3.1, 161.903.3.2.) In response to Art Colony's unlawful detainer complaint, Choi asserted Art Colony had not paid the SCEP fee and was therefore prohibited from evicting him. In support of his brief, Choi submitted declarations by two other residents at 2401 Santa Fe Avenue, who described the configuration and attached photographs of their units. He also submitted a letter to his counsel from the custodian of records at the Los Angeles Housing Department for the City of Los Angeles indicating that Art Colony had not paid SCEP fees during the preceding three years and had not been billed for those fees since March 2012.
All undesignated statutory references are to the Los Angeles Municipal Code.
The fee at issue is called a Systematic Code Enforcement Program Fee. (§ 161.352.) Because the parties and the court refer to the fee as a "SCEP fee," we do so as well.
The letter states that it was generated in response to a request made under the California Public Records Act.
Art Colony's trial brief explained that the entire complex, including the rental unit, had been converted from a furniture manufacturing facility to "Artist-in-Residence" units. Art Colony asserted that the City considers the units to be industrial rather than residential and therefore the entire property is exempt from the SCEP fee cited by Choi. As a result, Choi's affirmative defense failed. Art Colony requested that the court judicially notice four documents: a Zone Information and Map Access System report, a bulletin, a "Use List Memo," and a blank form titled "Conditional Exemption Application," all published by the City of Los Angeles Department of City Planning.
The bench trial took place on December 6, 2021. The minute order indicates the following:
• The parties stipulated to the admission of the declarations and related photographs submitted by Choi in support of his trial brief;
• The parties stipulated that Art Colony paid no fees under the Municipal Code sections cited by Choi;
• The parties stipulated to the admission of the letter stating that Art Colony had not paid the regulatory fees in the last three years and had not been billed for those fees since March 2012;
• The court took judicial notice of the Zone Information and Map Access System report and bulletin submitted by Art Colony, but only as to their existence and not as to the truth of their contents;
• Choi made an opening statement;
• Choi testified under oath; and
• The parties rested and the matter was argued to the court.
No reporter's transcript or other summary of these proceedings is contained in the appellate record.
The court's minute order includes the following ruling: "Per the stipulation of the parties, the Court conducted a court trial on an affirmative defense. Defendant [Choi] asserts as an affirmative defense, the failure to pay required SCEP fees. Los Angeles Municipal Code § 161.903.3.2 provides: 'The tenant may assert as an affirmative defense to any unlawful detainer action that the landlord has failed to pay required fees pursuant to this article.' The Court has considered the stipulations of the parties, the matters as to which the Court took judicial notice, and the testimony of Duke Choi.
"The obligation to pay SCEP fees applies 'to all residential rental properties with two or more dwelling units, efficiency dwelling units, light housekeeping rooms, guest rooms and suites, as these terms are defined in Section 12.03 of this Code, where one or more of these units are rented or offered for rent on the same lot, land, buildings and structures appurtenant thereto.' (LAMC § 161.301.) Here, the Court does not need to address the issue of whether Defendant's unit falls within that definition. The evidence before the Court, by stipulation, includes a letter from the City of Los Angeles Housing Department, dated October 12, 2021, regarding the payment of SCEP fees. That letter states, 'no payments have been made in the last 3 years' relating to the property 'and the property has not been billed since March 2012.' Since the uncontroverted evidence is no SCEP fees were billed to the Plaintiff, Defendant has failed to establish that the Plaintiff has failed to pay any required fees. The Court finds in favor of the Plaintiff on this affirmative defense."
The court conducted a jury trial over several days in February 2022. The jury returned a verdict in favor of Art Colony finding no breach of the warranty of habitability. The jury awarded damages of $51,064 in unpaid rent and holdover damages from January 2020 through February 2022. The court entered judgment on the jury's verdict in favor of Art Colony and ordered that Choi's rental agreement was forfeited, a writ of possession should issue forthwith, and costs and attorney's fees would be awarded to Art Colony pursuant to a noticed motion.
The court entered judgment in favor of Art Colony on March 7, 2022. The court subsequently denied Choi's motion for judgment notwithstanding the verdict. Choi timely appeals.
DISCUSSION
1. Appellant's Burden on Appeal
The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and "it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)" 'All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
The appellant has the burden to show error, even if the appellant did not bear the burden in the trial court, and" 'to point out the triable issues the appellant claims are present by citation to the record and any supporting authority.'" (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230.) When an opening brief fails to make appropriate references to the record in connection with points urged on appeal, the appellate court may treat those points as waived or forfeited. (See, e.g., Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 779-801 [several contentions on appeal "forfeited" because appellant failed to provide a single record citation demonstrating it raised those contentions at trial].) Further, "an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867.) Matters not properly raised or that lack adequate legal discussion will be deemed forfeited. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656.)
An appellant has the burden not only to show error but prejudice from that error. (Cal. Const., art. VI, § 13.) If an appellant fails to satisfy that burden, the argument will be rejected on appeal. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) "[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.] Nor will this court act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial. [Citations.]" (Ibid.) In short, an appellant must demonstrate prejudicial error based on sufficient legal argument supported by citation to an adequate record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.)
2. The appellate record is inadequate.
Choi contends the court erred in ruling that his affirmative defense under section 161.903.3.2 does not bar Art Colony's unlawful detainer action. In making its ruling, the court stated that it considered evidence including Choi's testimony at the bench trial. The parties, however, chose not to have the bench trial proceedings transcribed by a court reporter.
Section 161.903.3.2 provides, "The tenant may assert as an affirmative defense to any unlawful detainer action that the landlord has failed to pay required fees pursuant to this article."
We are unable to address the merits of Choi's challenge to the judgment because he failed to provide us with a transcript of the bench trial or a suitable summary. Specifically, California Rules of Court, rule 8.120(b) provides, "If an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of these oral proceedings in the form of one of the following: [¶] (1) A reporter's transcript under rule 8.130; [¶] (2) An agreed statement under rule 8.134; or [¶] (3) A settled statement under rule 8.137."
"In numerous situations, appellate courts have refused to reach the merits of an appellant's claims because no reporter's transcript of a pertinent proceeding or a suitable substitute was provided. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporter's transcript fails to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., § 1094.5 petition]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713-714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporter's transcript [or] settled statement].)" (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187.) This case is no different. Without a complete record of the bench trial, we are unable to assess the correctness of the court's ruling.
Additionally, the parties largely ignore the court's ruling and instead ask us to decide in the first instance whether Choi's rental unit is a residential unit subject to SCEP fees or an "artistin-residence" unit that is not. As noted, the court did not decide this issue. Choi characterizes the issue as one of pure statutory interpretation that is amenable to resolution as a matter of law. But in order to determine the controlling classification of the rental unit, we could not rely solely on the City's Municipal Code. We would also require detailed records from the City that are specific to the rental unit and the complex of which it is a part. Those materials are not part of the appellate record. Indeed, both parties have requested judicial notice of additional evidence- such as a conditional use permit regarding the complex-which was not before the trial court.
Choi misunderstands our role." 'An" 'essential distinction'" between trial courts and appellate courts is that" 'it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law ... .'" (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Appellate courts do not make factual findings; we review" 'the correctness of a judgment [or order] as of the time of its rendition.'" '(People v. Contreras (2015) 237 Cal.App.4th 868, 892.)" (Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1211-1212.) Accordingly, we reject the parties' attempt to relitigate the proper classification of the rental unit in this court.
DISPOSITION
The judgment is affirmed. Respondent Art Colony Property LLC shall recover its costs on appeal.
WE CONCUR: EDMON, P. J. EGERTON, J.