Opinion
A147282
11-16-2018
HERO CHIANG et al., Plaintiffs and Appellants, v. NADER HEYDAYIAN et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Francisco County Super. Ct. No. CGC-14-540228)
At approximately 1:00 a.m. on New Year's Day in 2011, a fire broke out in the apartment building at 920 Montgomery Street in San Francisco, where appellants, Hero Chiang and Janeva Chiang, an elderly couple, had resided for more than 16 years. The Chiangs were forced to evacuate and to relocate for a period of 33 months while the building underwent repairs. They later sued respondents Nader Heydayian and Scott Pelichoff, who allegedly owned the building (collectively, "landlords"), and their attorney, Janet Brayer, claiming the landlords were required, after repairing the unit, to reinstate them in it on the same terms and conditions they had previously enjoyed under section 37.9 of San Francisco's Residential Rent Stabilization and Arbitration Ordinance (Rent Ordinance), and San Francisco Rent Board Rules and Regulations, rule12.19 (Rent Board Rule 12.19). Instead, they alleged, when the landlords renovated the apartment, they carved out space from the Chiangs' unit to add a single room occupancy (SRO) unit next door, "disallowed" the Chiangs from reoccupying the unit, and raised the rent dramatically when they rented it to someone else.
The trial court entered judgment for the landlords and Brayer after (1) sustaining without leave to amend the demurrer and motion to strike filed by Heydayian and Pelichoff, and (2) granting Brayer's anti-SLAPP motion (Code Civ. Proc., § 425.16). The Chiangs acted as their own counsel in the trial court and on appeal. Due to deficiencies in the briefing and the record, we find no basis for reversing and will affirm the judgment.
I. BACKGROUND
On October 9, 2013, some 33 months after the fire, the landlords notified the Chiangs they could reclaim their apartment. The Chiangs contend the landlords had reduced the size of their master bedroom to make room to add an SRO unit to the building and had in other ways altered the terms and conditions of their rental in violation of Rent Board Rule 12.19. The unit they were offered was still a three-bedroom unit but was smaller in overall size than the apartment they had previously occupied. The Chiangs claim they "met all the requirements of the Landlord within less than two weeks after our receipt of his notice," but do not explain further the substance of their response. The Chiangs then allege the landlords "disallowed" them from moving back into the apartment and allegedly rented out the unit for a rate more than five times the rent the Chiangs had been paying (more than $5,200 per month instead of $945.46, which the Chiangs had paid). After the fire, the Chiang family members who had previously shared the apartment at 920 Montgomery had to separate into different living spaces, thereby violating the Chiangs' cultural tradition. The Chiangs alleged it would cost roughly $3,300-$4,600, or an average of $3,950 per month, for a comparable three-bedroom apartment.
On June 25, 2014, the Chiangs sued the landlords and their attorney, Janet Brayer, alleging wrongful eviction. The action against Brayer may have been based, at least in part, on an allegation that Brayer had persuaded the Chiangs' attorney to withdraw from the case. The complaint itself is not in the record. On April 23, 2015, the landlords and Brayer filed a demurrer to the complaint and a special motion to strike (anti-SLAPP motion). The grounds for the demurrer and motion are not clear, as the moving and opposition papers are not included in the record on appeal. On July 7, 2015, Judge Garrett Wong sustained defendants' demurrer to the complaint with partial leave to amend, and granted the special motion to strike as to all causes of action against defendant Janet Brayer, thus eliminating her from the case. The demurrer as to Pelichoff, on the sole cause of action against him for deceit, was sustained without leave to amend, as barred by the statute of limitations. As to Heydayian, the demurrer was sustained with leave to amend and instructions to the Chiangs to "allege each cause of action separately and to allege facts in support of each element of each cause of action."
The Chiangs submit no argument showing that the anti-SLAPP motion by Brayer was improperly granted. For that reason alone, we may affirm the judgment as to Brayer.
On August 6, 2015, the Chiangs filed a first amended complaint against the landlords, which is contained in the appellate record. The first amended complaint attempts to assert a cause of action for "illegal eviction," but does not comply with Judge Wong's directions. The first amended complaint refers back to the original complaint, as though incorporating it by reference; accuses respondents of bribing the Fire Department to alter a report on the fire; and claims some type of "evasion" by defendants around the time the unit was offered for reoccupancy. The headings in the first amended complaint set forth "arguments" instead of causes of action, and the sub-headings include "Who," "What," "When," and "Where" but do not identify the causes of action asserted. The first amended complaint alleges more than $600,000 in damages and concludes with a reference to a "SLAPP suit," a demurrer, and "hiring for stalking," as well as a brief denunciation of the American justice system, contrasting the treatment of judges, lawyers, and landlords with the treatment the Chiangs feel they have received.
The Chiangs obliquely accuse the landlords of stalking them, or hiring someone to stalk them, for which the Chiangs seek monetary damages.
The landlords again filed a demurrer and a motion to strike portions of the first amended complaint on September 2, 2015. The demurrer and motion to strike are not in the record. When the Chiangs had not responded by October 1, the landlords filed notices of non-opposition. The Chiangs filed a late opposition to the demurrer and motion to strike on October 5, 2016, which also is not in the record. (See Code Civ. Proc., § 1005, subd. (b).) On October 6, 2015, Judge Ronald Quidachay ruled that the Chiangs' opposition to the demurrer and motion to strike were untimely filed and were "not considered." (See Cal. Rules of Court, rule 3.1300(d).) That is the only reason given in the orders for sustaining the demurrer and granting the motion to strike, both without leave to amend. Thus, we infer that Judge Quidachay treated the demurrer and motion to strike as unopposed and ruled in favor of the landlords without considering any countervailing arguments. On November 19, 2015, judgment was entered for defendants, including an award of costs to defendants. The Chiangs filed a timely notice of appeal from the judgment.
The court's orders of October 6, 2015, sustaining the demurrer and granting the motion to strike are not in the record on appeal. We take judicial notice of those orders on our own motion. (Evid. Code, § 452, subd. (d) & 459.) They are available online at the superior court's Web site: <https://webapps.sftc.org/ci/CaseInfo.dll?CaseNum=CGC14540228&SessionID=563739F09AE68EC3FEB59A1F9628D68C6A1B493E> (last accessed Nov. 16, 2018).
Further reference to rules are to the California Rules of Court.
After the hearing on October 6, 2015 and again after entry of judgment on November 19, 2015, the Chiangs filed numerous and variously-styled motions attempting to revive the first amended complaint, all of which were denied. Ultimately, on November 19, 2015, Judge John K. Stewart "warned plaintiffs that if they continue[d] to file frivolous motions, the Court [would] impose sanctions." Although several of the motions appear in the record, we do not address the propriety of those rulings, as they are not before us.
The Chiangs represented themselves in the trial court and on this appeal. One of the complaints they assert against Brayer is that she persuaded an attorney who had previously represented them to abandon that representation. We remind the Chiangs, however, that litigants who represent themselves are held to the same standards to which an attorney would be held in following the rules of practice. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
The Chiangs may have intended to assert a cause of action against Brayer for some sort of interference in their relationship with their attorney, causing their attorney to abandon their case. The exact legal theory underpinning such a cause of action has not been set forth.
II. DISCUSSION
A. The Law in San Francisco Relating to Dispossession by Fire
Rent Board Rule 12.19 reads: "(a) If a tenant is forced to vacate her/his unit due to fire or other disaster, the landlord shall, within 30 days of completion of repairs to the unit, offer the same unit to that tenant under the same terms and conditions as existed prior to her/his displacement. The landlord's offer shall be sent to the address provided by the tenant. If the tenant has not provided an address, the offer shall be sent to the unit from which the tenant was displaced and to any other address of the tenant of which the landlord has actual knowledge, including electronic mail (e-mail) addresses. [¶] (b) The tenant shall have 30 days from receipt of the landlord's offer to notify the landlord of acceptance or rejection of the offer and, if accepted, shall reoccupy the unit within 45 days of receipt of the landlord's offer. [¶] (c) However, the cost of capital improvements which are necessary before rerenting a unit which was damaged or destroyed as set forth in subsection (a) above, which cost was not reimbursed by insurance proceeds or by any other means (such as a satisfied judgment) may be passed through to the tenant by utilization of the capital improvement petition process as set forth in Part 7 above. Any rent increase under this section would require that a notice be served upon the tenant(s) pursuant to Civil Code Section 827. [¶] (d) The landlord who attempts to re-rent a unit, but refuses to allow a tenant to return to her/his home under this section shall have wrongfully endeavored to recover or wrongfully recovered said tenant's rental unit in violation of Section 37.9 of the Ordinance and shall be liable to the displaced tenants for actual and punitive damages as provided by Ordinance Section 37.9(f). This remedy shall be in addition to any other remedy available to the tenant under the Rent Ordinance."
Rent Ordinance, section 37.9(f) reads as follows: "Whenever a landlord wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of Sections 37.9 and/or 37.10A as enacted herein, the tenant or Rent Board may institute a civil proceeding for injunctive relief, money damages of not less than three times actual damages (including damages for mental or emotional distress as specified below), and whatever other relief the court deems appropriate. If the landlord has recovered possession pursuant to Section 37.9(a)(8), such action shall be brought no later than five years after (1) the date the landlord files the first statement of occupancy with the Rent Board under Section 37.9(a)(8)(vii) or (2) three months after the landlord recovers possession, whichever is earlier. In the case of an award of damages for mental or emotional distress, said award shall only be trebled if the trier of fact finds that the landlord acted in knowing violation of or in reckless disregard of Section 37.9 or 37.10A herein. The prevailing party shall be entitled to reasonable attorney fees and costs pursuant to order of the court. The remedy available under this Section 37.9(f) shall be in addition to any other existing remedies which may be available to the tenant or the Rent Board."
B. The Judgment
The notice of appeal specifies that the Chiangs were appealing from the judgment entered November 19, 2015. That judgment reads: "The Court on October 29, 2015 (after sustaining without leave to amend Defendants Nader Heydayian and Scott Pelichoff's Demurrer to Plaintiffs Amended Complaint, and after granting the SLAPP motion filed on April 23, 2015 as to Defendant Janet Brayer), entered an Order, re: Entry of Dismissal as to Defendants Nader Heydayian, Scott Pelichoff and Janet Brayer. [¶] IT IS ORDERED AND DECREED that: [¶] Judgment shall enter in favor of Defendants Nader Heydayian, Scott Pelichoff and Janet Brayer, and against Plaintiffs Janeva Chiang and Hero Chiang; [¶] Plaintiffs Janeva Chiang and Hero Chiang shall take nothing in this action, and defendants Nader Heydayian, Scott Pelichoff and Janet Brayer shall recover from said Plaintiffs cost to be determine by a motion and/or memorandum of costs that said defendants may hereinafter submit." We construe the notice of appeal as encompassing the orders referred to in the judgment.
The Chiangs complain that the judgment, drafted by Brayer, did not accurately reflect what occurred at the hearings , but they did not include in the record any reporter's transcripts of the crucial hearings. They therefore fail to carry their burden of showing error below.
C. Standard of Review
"On appeal from a judgment after a demurrer is sustained without leave to amend, we review the trial court's ruling de novo, exercising our independent judgment on whether the complaint states a cause of action." (Anselmo v. Grossmont-Cuyamaca Community College Dist. (2018) 25 Cal.App.5th 948, 951.) " '[W]e examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.' (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.) If the demurrer was sustained without leave to amend, we consider whether there is a 'reasonable possibility' that the defect in the complaint could be cured by amendment. (Hendy v. Losse (1991) 54 Cal.3d 723, 742 (Hendy).) The burden is on plaintiffs to prove that amendment could cure the defect. (Ibid.)" (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050.) If amendment could cure the defect, the trial court would have abused its discretion, and we would reverse. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100.) We cannot tell from the record presented on appeal whether the demurrer was general or special, and upon application of the presumption of correctness, we will affirm.
If the Chiangs could show the landlords' demurrer was sustained only as a special demurrer, they would be entitled to leave to amend. "It is an abuse of discretion to sustain a special demurrer without leave to amend since it is directed to a defect of form rather than of substance." (Jones v. Daly (1981) 122 Cal.App.3d 500, 506, fn. 1; Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 8.) They have not made such a showing.
D. The First Amended Complaint
The Chiangs' first amended complaint—essentially a narrative—sought relief from the landlords for violation of Rent Board Rule 12.19, seeking damages of more than $600,000. Their first amended complaint is without form to help identify the causes of action the Chiangs intended to assert. It is not even clear if the Chiangs intended to assert a single cause of action or several. The Chiangs simply did not comply with Judge Wong's admonition to "allege each cause of action separately and to allege facts in support of each element of each cause of action." (See rule 2.112.)
The first amended complaint is titled: "Amended Complaint: Illegal Eviction," which may suggest a single cause of action was intended. If intended solely as a complaint for violation of Rent Board Rule 12.19, the first amended complaint contains much surplusage and extraneous detail. For instance, the Chiangs allege some sort of improper contact between the landlords and the Fire Department, including the landlords' "paying money" for the apparent purpose of altering the report on the fire. The legal significance of the allegation remains unclear, however. The Chiangs also allege the fire alarms were not operating at the time of the fire. In their briefing, they contend the landlords turned off the electricity, which disabled the alarms, leading to what may be gleaned was extensive damage to the building and loss of property. Yet, the legal significance of this alleged fact is not explained. They allege facts relating to Hero Chiang's health problems and his military service during the Vietnam War. Many of their allegations are not germane to the question of whether the Chiangs are entitled to compensation for being denied reoccupancy, but the first amended complaint does not distinguish which of the factual allegations were intended to underpin a separate cause of action and which were simply added as background information. For that reason, it was subject to demurrer for uncertainty and ambiguity. (Code Civ. Proc., § 430.10, subd. (f).) That gives us reason to affirm the order granting the demurrer. "The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken.' " (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
The Chiangs explain in their amended opening brief that fire personnel and police responding to the fire had kicked their front door in a rescue operation, which reminded Hero Chiang of similar actions by the Vietnamese Communists during the time he served in Vietnam, and triggered flashbacks and post-traumatic stress symptoms. They also express in their first amended complaint emotional distress resulting from having to relocate to a different area of San Francisco, which is "swarmed with Chinese Communist Cadres." The Chiangs may have intended to allege a cause of action for emotional injury to Hero Chiang, or they could have just been explaining the emotional damages potentially recoverable for a violation of Rent Board Rule 12.19 under Rent Ordinance section 37.9(f).
E. Appellants' Briefing on Appeal
The Chiangs have not presented a coherent theory in their briefs explaining why the judgment must be reversed on appeal. They do not specify how the court erred in ruling in favor of the landlords. Their arguments are largely emotional, based on the relative financial positions of the parties, Hero Chiang's patriotism in past service to this country, and the losses and misery they have suffered in being displaced from their home. They claim the landlords denied them reoccupancy in retaliation for the Chiangs' earlier filing of a civil action against the landlords, which was eventually dismissed.
We are not unmoved by the Chiangs' predicament, but we cannot find error in the trial court's ruling on the demurrer based on the record with which we have been presented. The judgment comes to us cloaked in a presumption of correctness, which it is the appellants' burden to overcome. (See, e.g., Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; Poland v. Department of Motor Vehicles (1995) 34 Cal.App.4th 1128, 1134-1135.)
Rule 8.204(a)(1)(B) governs the legal content of an opening brief and admonishes appellants to "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority." Factual assertions must be supported by citations to the record; the brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Rule 8.204(a)(1)(C).) The Chiangs consistently failed to abide by these rules. (See Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 599-600.)
More importantly, the legal grounds for the Chiangs' appeal are unclear. In their opening brief, they accuse the landlords of "Negligence and Failure to Perform Duties" and claim the landlords and Brayer engaged in "Unfair or Deceptive Trade Practices." They ask us to engage in a "de novo review" of the case—to "consider the matters afresh"—and reverse the judgment, inviting our independent assessment of evidence not before the trial court. They cite Rent Ordinance section 37.9(a)(8)(iv), apparently to suggest the landlords should have offered them a comparable unit, and sections 37.9(d) and 37.9(f), apparently to establish their entitlement to treble damages and attorney fees. But they do not explain how their first amended complaint satisfied the pleading rules.
The Chiangs submitted additional evidence attached to their opening brief; letters that bear no exhibit designation or stamp indicating they were filed in superior court are attached but will not be considered by us. Likewise, a declaration by attorney Jason Lundberg, bearing no indication it was submitted to the trial court, will not be considered.
The Chiangs actually cite Rent Ordinance sections 16(d) and 16(f), but we construe the citations as referring to Rent Ordinance sections 37.9(d) and 37.9(f).
The Chiangs treat their "slight fault of technical error" (presumably, their late-filed opposition to the demurrer) as something too petty to result in their being deprived of a trial. But this was their second chance to draft a comprehensible complaint, and they showed little understanding of how to correct the errors. Judge Quidachay was within his discretion in sustaining the demurrer and denying the Chiangs leave to amend.
"It is Plaintiff's burden to show either that the demurrer was sustained erroneously or that the trial court's denial of leave to amend was an abuse of discretion. [Citations.]" (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655.) The trial court's judgment is presumed to be correct, and the appellant "has the burden to prove otherwise by presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited. [Citations.]" (Id. at pp. 655-656) In the context of an appeal following a sustained demurrer, this means the appellant must not only explain the legal basis for the cause of action, but he or she must also cite the particular facts alleged in the complaint which, if found to be true, would support the cause of action. (Ibid.) The appellants' amended opening brief does not follow these rules or fulfill the function of showing the trial court's ruling to have been in error. Nor have the Chiangs provided us with a record to support the allegations and arguments of their briefs.
Appellants' amended opening brief is the only opening brief filed in this court by the Chiangs. They evidently drafted and served an opening brief earlier but neglected to file it with this court.
F. The Record
An appellant " 'has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].' " (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 (Foust); see Jameson v. Desta, supra, 5 Cal.5th at pp. 608-610.)
The Chiangs elected to proceed on appeal with a clerk's transcript and without a reporter's transcript; they produced no reporter's transcript of the hearings on July 7, October 6, or November 19, 2015, and the register of actions shows the hearings on those dates were "not reported." Nothing further was submitted by the Chiangs to make up for the absence of a reporter's transcript, such as a settled or agreed statement. (Rules 8.134 & 8.137.) Accordingly, the Chiangs cannot rely on any errors at those hearings unless the error appears on the face of the record. (Rule 8.163.) "If, on appeal on a judgment roll or clerk's transcript, the error urged by the appellant does not appear on the face of the record, all intendments will be made in support of the judgment . . . ." (Dumas v. Stark (1961) 56 Cal.2d 673, 674.) The same rule applies to an appeal brought up on an appellant's appendix. (Hillman v. Leland E. Burns, Inc. (1989) 209 Cal.App.3d 860, 864.)
Under Jameson v. Desta, henceforth litigants without means, such as the Chiangs, will be entitled to an official court reporter's services. (5 Cal.5th at p. 623.)
The Chiangs also filed a "Plaintiffs' Appendix with Addendum," which we will treat as an appellants' appendix to the extent it contains documents that were filed in superior court. The record does include the amended complaint and the judgment appealed from. Beyond that, it contains little more than a hodge-podge of documents—including an article translated from a Chinese language newspaper—some of them hard to identify and their role in the case hard to define. To ascertain what happened during the hearings on July 7, October 6, and November 19, 2015, we are left with the abbreviated summaries contained in the register of actions.
Respondents object to our consideration of Plaintiff's Appendix with Addendum. In our discretion, we consider those documents in the appendix that show they were filed in superior court. Respondents also object to our consideration of the charts titled, "Summary Table 920 Montgomery" and "A Long Story Told Short" that appear at the beginning of appellants' amended opening brief. We consider those parts of the opening brief only insofar as they shed light on appellant's arguments and the meaning of the first amended complaint. We do not accept statements therein for their truth.
It is a "cardinal rule of appellate review that a judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown." (Foust, supra, 198 Cal.App.4th at p. 187.) The lack of a reporter's transcript of the crucial proceedings requires us to "presume that what occurred at that hearing supports the judgment." (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201.) "The absence of a record concerning what actually occurred at the hearing[s] precludes a determination that the court abused its discretion." (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.) In addition to all of the other deficiencies in this appeal, that alone justifies affirmance.
We decline respondents' request to dismiss the appeal rather than affirming.
III. DISPOSITION
Among the skills those who are trained in the law bring is the ability to focus on what is legally important, present factual information in accordance with that focus, and leave out that which is unimportant. It is, of course, a challenge for self-represented persons to accomplish this. They may try—indeed, they have a right to try—and some may succeed. In their effort to do so here, the Chiangs fell short. Although we recognize access to counsel is often a significant issue for many litigants, San Francisco is a community where pro bono legal assistance is more readily available than in many parts of the country. But those who must "go it alone," by necessity or by choice, cannot proceed in the expectation that the courts will figure out what they are trying to say and why it has legal significance. That is what lawyers do. It is not our role as neutral decision makers to bridge the gaps in a self-represented litigant's attempt to present effective appellate arguments. While there is much in the Chiangs' version of events to inspire sympathy, we are duty bound to apply the law impartially. We have done so, and the result is clear—we see no error.
The judgment is affirmed. Each party shall bear his or her own costs.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Tucher, J. /s/_________
Lee, J.
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------