From Casetext: Smarter Legal Research

Baul v. Gonong

California Court of Appeals, Second District, Third Division
Aug 30, 2023
No. B317757 (Cal. Ct. App. Aug. 30, 2023)

Opinion

B317757

08-30-2023

AUSTIN BAUL, Plaintiff and Appellant, v. FERNANDICO GONONG, JR., et al., Defendants and Respondents.

Austin Baul, in pro. per., for Plaintiff and Appellant. Law Offices of Mariano A. Alvarez, Mariano A. Alvarez and Erwin T. Manuel, for Defendants and Respondents.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STCV18441, Monica Bachner, Judge. Affirmed.

Austin Baul, in pro. per., for Plaintiff and Appellant.

Law Offices of Mariano A. Alvarez, Mariano A. Alvarez and Erwin T. Manuel, for Defendants and Respondents.

ADAMS, J.

This appeal arises out of a dispute between individuals involved in the Filipino American Community of Los Angeles, Inc. (FACLA). The dispute has generated multiple lawsuits and appeals. In the matter currently before us, Austin Baul sued several defendants for libel. Following a bench trial, the trial court entered a defense judgment. We affirm the judgment.

In a prior nonpublished opinion we provided the following background information: "The parties have been involved in a leadership dispute within [FACLA], a nonprofit organization of which [Adriano] Lecaros, Fernandico Gonong, Jr., and Maximo Fortu were former directors or officers. [Fn. omitted.] In December 2018, litigation resulted in a trial court order installing nonparty Veronico Agatep as FACLA president. According to plaintiffs' complaint, while Gonong appealed that decision, he barred Agatep from entering FACLA's offices. In April 2020, another division of this court affirmed the order installing Agatep as president. (Caratao v. Gonong (Apr. 2, 2020, B294469) [nonpub. opn.].)" (Baul v. Lecaros (Aug. 30, 2022, B315968).)

FACTUAL AND PROCEDURAL BACKGROUND

In February 2017, Baul filed a complaint and, in April 2017, an amended complaint, against Fernandico Gonong, Jr., Grace Gonong, Mariano Alvarez, Veronico Agatep, Rosalinda Nery, Pex Aves, Dionesio Grava, Alfonso Aquino, and Vilma Hernandez. The amended complaint asserted a single cause of action for libel. Baul alleged the defendants falsely accused him of embezzling funds from FACLA, and made other libelous statements about him on social media and in declarations filed in connection with legal proceedings. In March 2018, Baul filed a request for dismissal of the complaint, without prejudice. Although Baul subsequently claimed he only intended to dismiss Agatep, his actual request was not limited to specific defendants. In May 2019, the trial court confirmed the dismissal as to all defendants.

On May 29, 2019, Baul filed a new complaint for libel against Fernandico Gonong, Jr., Grace Gonong, Rosalinda Nery, Pex Aves, Dionesio Grava, Alfonso Aquino, and Ferdinand Espinosa Gallardo. The complaint alleged the defendants issued 11 defamatory statements about him: six posts on Facebook or email in 2016; two "Facebook and Messenger" posts in 2018; and three statements made by "Messenger," e-mail, and posted on a FACLA social media platform, in 2019.

Aves and Grava moved for judgment on the pleadings. In September 2020, the trial court ruled the statute of limitations barred Baul's claims based on alleged statements made prior to May 29, 2018. The complaint's only allegations about Aves concerned conduct in 2016. Although the statute of limitations barred claims based on Grava's conduct in 2016, the complaint also alleged Grava made libelous statements in 2019. The court thus granted the motion with leave to amend as to Aves, and denied the motion as to Grava. In September 2020, Baul filed an amended complaint adding a second cause of action for slander against Aves only. At some point, Baul dismissed defendants Grace Gonong, Rosalinda Nery, Alfonso Aquino, and Ferdinand Espinosa Gallardo.

The case against remaining defendants Gonong, Jr., Aves, and Grava (collectively defendants) proceeded to a bench trial. In an October 2021 decision, the trial court reaffirmed the prior ruling that the statute of limitations barred Baul's claims based on statements made prior to May 29, 2018. This eliminated all but three of Baul's allegations: 1) on April 23, 2019, Grava "publicized to several people by Messenger that [Baul] converted FACLA to a sole proprietorship"; 2) "on May 7, 2019, Grava emailed several persons calling [Baul] a demon horse and accusing [Baul] of perpetrating the worst kind of irregularities at FACLA"; and 3) "on May 11, 2019, Gonong and Gallardo conspired and posted in Filipino Cultural Center, a social media platform of FACLA, that [Baul] is [an] ex-convict and a hoodlum[.]"

The trial court concluded Baul failed to prove these claims. The court found Baul presented no affirmative evidence that the April 23, May 7, or May 11, 2019 statements were made, and the statements were not offered into evidence. As to the May 7, 2019 statement, the court noted Grava denied making the statement. The court's ruling further indicated that Baul presented no evidence at trial to support the slander claim against Aves.

In December 2021, the court entered judgment for defendants. Baul timely appealed.

DISCUSSION

Baul contends the trial court erred in finding the statute of limitations barred his claims arising from conduct that occurred prior to May 29, 2018. Baul also asserts the trial court erred in finding he did not provide affirmative evidence of the three statements not barred by the statute of limitations. We affirm the judgment.

I. The Trial Court Properly Concluded The Statue Of Limitations Barred Baul's Claims Arising Before May 29, 2018

In ruling on the motion for judgment on the pleadings, and at the conclusion of trial, the trial court found the statute of limitations barred Baul's claims arising from statements made over one year before he filed his second complaint. We find no error in the trial court's ruling.

"The application of the statute of limitations on undisputed facts is a purely legal question [citation]; accordingly, we review the lower [court's] rulings de novo." (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) The limitations period for libel and slander is one year. (Code Civ. Proc., § 340, subd. (c); Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246 (Shively).) An action must be filed within one year after the alleged statement is published, which means when "the defendant communicates the defamatory statement to a person other than the person being defamed." (Shively, at pp. 1246, 1247.)

Baul filed his complaint on May 29, 2019. The trial court properly concluded that any statements published before May 29, 2018, fell outside of the limitations period.

Baul contends the trial court erred in rejecting his argument that the relation back doctrine allowed him to pursue claims that would otherwise be barred by the one-year statute of limitations. He argues that to "overcome the Statute's bar on [his] claims," he filed an amended complaint in September 2020, asserting Aves made a defamatory statement in October 2019.

Baul's argument misapprehends the law. The relation back doctrine concerns the timeliness of amendments to a complaint that are made after the limitations period has expired. "Under the relation-back doctrine, an amendment relates back to the original complaint if the amendment (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality." (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves &Savitch, LLP (2011) 195 Cal.App.4th 265, 276; Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 151.) Thus, an amended complaint that asserts claims outside of the limitations period may nonetheless be viable if it "relates back" to the original complaint." '[T]he amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts.' [Citation.]" (Wilson v. Bittick (1965) 63 Cal.2d 30, 38.)

Here, the problem was not the timeliness of Baul's amended complaint. The claims barred by the statute of limitations were in the original complaint. Amending the complaint to add new, timely claims did not save time-barred claims in the original complaint. The trial court properly rejected Baul's relation back theory.

II. Baul Failed to Provide An Adequate Record to Support His Other Arguments

It is a fundamental rule of appellate review that an appealed judgment or order is presumed correct, and error must be affirmatively shown. (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson); Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)" 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court.'" (Jameson, at p. 609.) To overcome this presumption, the appellant has the burden of providing the appellate court with an adequate record demonstrating error. (Ibid.; 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 [the appellant].' [Citation.]" (Jameson, at p. 609.) These rules apply equally to self-represented litigants. (Flores v. Department of Corrections &Rehabilitation (2014) 224 Cal.App.4th 199, 205.)

On appeal, Baul argues the trial court erred in finding he did not provide affirmative evidence to support his claims. He asserts there was evidence of defendants' alleged statements in the record. However, he has not provided a reporter's transcript from the trial, or an agreed or settled statement. "When there is no reporter's transcript and no error is evident from the face of the appellate record, we presume that the unreported trial testimony would demonstrate absence of error." (Shenefield v. Shenefield (2022) 75 Cal.App.5th 619, 633, fn. 12; In re Estate of Fain (1999) 75 Cal.App.4th 973, 992 [appellant who attacks judgment but supplies no reporter's transcript precluded from raising sufficiency of the evidence argument].)

Further, Baul has not provided this court with the trial exhibits, or any other portions of the record to support his assertion that the trial court's ruling was in error or not supported by substantial evidence. Baul's only citation to the record in support of his argument is to a February 24, 2021 minute order, in which the trial court indicated its prior rulings as to plaintiff's trial exhibits 1 through 6 and 8 would "remain." The next page in Baul's appendix is a July 30, 2021 minute order in which the trial court received into evidence plaintiff's exhibits 1 through 6. However, Baul has not provided any documents in his appendix identifying the content of exhibits 1 through 6. In addition, the July 30, 2021 minute order described the nature of the proceedings as: "Hearing Regarding (1) Why the Court Should not Reconsider it[s] Ruling Excluding Exhibits 1-6 and 8 and (2) for Plaintiff to Identify the Evidence Submitted at Trial Regarding the April 23, 2019 Publication on Messenger, and the May 7, 2019 Email Calling 'Plaintiff a Demon Horse.'" The court ordered supplemental briefing, and, in the final statement of decision, the court indicated it had considered the supplemental briefing, "the evidence and the arguments."

Without a reporter's transcript, the trial exhibits, or any other complete record of the evidence admitted at trial, we cannot meaningfully review Baul's argument on appeal that, contrary to the trial court's indications in the statement of decision, he in fact provided affirmative evidence to support his claims. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186188 (Foust).) The trial court's order is presumed correct, and Baul's incomplete record does not establish error. In his reply brief, Baul asks that this court, on its own motion, order the reporter's transcript. We decline this request. It is the appellant's burden to provide an adequate record to demonstrate error. This court will not compile a record where Baul has failed to do so. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498-499.) We are required to resolve the issue against Baul. (Foust, at p. 187.)

We note that Baul has not identified any specific testimony he claims the trial court ignored or overlooked in its ruling. At most, Baul asserts defendants lied or were not credible. However, on appeal, this court defers to the trial court's credibility determinations. (Guardianship of Saul H. (2022) 13 Cal.5th 827, 847.)

DISPOSITION

The judgment is affirmed. Defendants to recover their costs on appeal.

We concur: EDMON, P. J., LAVIN, J.


Summaries of

Baul v. Gonong

California Court of Appeals, Second District, Third Division
Aug 30, 2023
No. B317757 (Cal. Ct. App. Aug. 30, 2023)
Case details for

Baul v. Gonong

Case Details

Full title:AUSTIN BAUL, Plaintiff and Appellant, v. FERNANDICO GONONG, JR., et al.…

Court:California Court of Appeals, Second District, Third Division

Date published: Aug 30, 2023

Citations

No. B317757 (Cal. Ct. App. Aug. 30, 2023)