Opinion
D074696
05-18-2020
JESSIE CROTEAU et al., Plaintiffs and Respondents, v. GLENN T. ROSEN et al., Defendants and Appellants.
Glenn T. Rosen, in pro. per., for Defendants and Respondents. Patrick Howe Law and Patrick M. Howe for Plaintiffs and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00038886-CU-NP-CTL) APPEAL from an order of the Superior Court of San Diego County, Joan M. Lewis, Judge. Dismissed (as to appellant The Rosen Law Firm, APC) and affirmed (as to appellant Glenn T. Rosen). Glenn T. Rosen, in pro. per., for Defendants and Respondents. Patrick Howe Law and Patrick M. Howe for Plaintiffs and Appellants.
Attorney Glenn Todd Rosen and his law firm, The Rosen Law Firm, APC (Rosen Law Firm) represented vexatious litigants in two previous actions against Jessie Croteau and his business, ICS Professional Services, Inc. (collectively, Croteau). After Croteau was successful in those actions, he filed the complaint in this action against Rosen and his firm, asserting a single cause of action for malicious prosecution. Rosen filed a frivolous anti-SLAPP motion (which was denied), employed dilatory discovery tactics (for which he was sanctioned), and ultimately failed to appear at trial. The trial proceeded in Rosen's absence, and damages—including $500,000 in punitive damages—were awarded against Rosen and his firm.
Nearly six months after judgment was entered, Rosen (now represented by separate counsel) filed a motion for relief from judgment under Code of Civil Procedure section 473, subdivision (b), claiming the judgment entered was attributable to excusable neglect "due to Rosen's severe mental, emotional and medical disabilities and cognitive incapacity as it related to this case." He included a declaration from his therapist who opined that Rosen was suffering from depression and anxiety that prevented him from attending trial. He also challenged the punitive damages award as excessive.
Unless otherwise specified, statutory citations are to the Code of Civil Procedure.
Croteau responded with evidence showing that Rosen was actively litigating other cases in federal court around the time of trial and argued that Rosen's failure to appear at trial should not be excused. The trial court agreed with Croteau and denied Rosen's motion, finding Rosen's neglect was not excusable, his motion for relief was not filed within a reasonable time, and the punitive damages award was adequately supported by evidence presented at trial.
Rosen appeals from the trial court's denial of his motion for relief from judgment, contending the trial court abused its discretion when it "completely disregarded the competent and admissible medical evidence and expert opinions submitted by [Rosen] and . . . determined that Rosen's mental health was not a justification for excusable neglect." Rosen further challenges the trial court's finding that Rosen's delay in filing the motion was not reasonable and renews his contention the punitive damage award is excessive.
Rosen Law Firm is a suspended corporation, and consequently cannot pursue this appeal. We therefore dismiss Rosen Law Firm from the appeal. However, we permit Glenn Rosen to pursue his appeal personally. We conclude Rosen has failed to establish that the trial court abused its discretion or erred in denying his motion for relief from judgment and affirm the order.
FACTS
A. Representation of Vexatious Litigants in Two Prior Actions
Through his firm, Rosen represented vexatious litigants in two civil actions against Croteau, filed in 2013 and 2014. After he filed the second lawsuit, Rosen substituted out of the cases. The individuals pursued the actions (self-represented) until late 2015. Croteau ultimately prevailed in both actions.
Rosen's clients in those cases had previously been declared vexatious litigants; Rosen's representation allowed them to pursue their claims without obtaining the pre-filing order that otherwise would have been required. (§§ 391, subd. (b), 391.7, subd. (a).)
B. The Current Malicious Prosecution Action
In November 2015, Croteau initiated the current malicious prosecution lawsuit against Rosen. Rosen responded by filing an anti-SLAPP motion under section 425.16, which was denied. The trial court found Rosen's motion was frivolous and intended to cause unnecessary delay and awarded Croteau approximately $35,000 in fees incurred in responding to Rosen's motion. He appealed from the fee order in prior appeal number D071470, but the appeal was dismissed when, after obtaining a 60-day extension, he failed to file an opening brief.
"To prevail in a malicious prosecution action under California law, a malicious prosecution plaintiff (the defendant in the underlying action) must show that (1) the plaintiff in the underlying action pursued a claim with subjective malice, (2) the claim was brought without objective probable cause, and (3) the underlying action was terminated on the merits in favor of the defendant." (Lane v. Bell (2018) 20 Cal.App.5th 61, 63-64.)
SLAPP is an acronym for "strategic lawsuit against public participation." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike . . . ." (§ 425.16, subd. (b)(1).)
"If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5." (§ 425.16, subd. (c)(1).) Rosen did not dispute that the motion was frivolous; he merely requested that the fees be reduced.
We take judicial notice of Rosen's prior appeal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
Trial was originally set for January 2017; however, trial was continued after Rosen failed to respond to discovery requests. Croteau successfully moved to compel responses, and the court awarded monetary sanctions against Rosen for discovery abuse.
Trial was continued until April. Rosen then obtained a continuance when his designated expert on malice suddenly became ill and died.
The expert was Rosen's colleague, friend and officemate; according to Rosen, the expert "offered to help [Rosen] for a reduced rate knowing [Rosen's] financial condition and [the] belief that [Rosen] had not acted with malice."
Trial was continued until July. Rosen designated a new expert, participated in drafting the joint trial readiness conference statement, and attended the trial readiness conference on June 30. However, Rosen failed to appear for trial call on July 21. The trial court struck Rosen's answer and instructed Croteau to file default prove-up evidence. Fearing a subsequent attack on a default judgment, Croteau requested that the trial court reinstate Rosen's answer and reset the cause for trial. The trial court granted Croteau's request and scheduled trial call for October 13, 2017.
See Wilson v. Goldman (1969) 274 Cal.App.2d 573, 576 [trial court may not enter a default if the defendant has filed an answer, even if the defendant fails to appear for trial].
C. Trial
Rosen did not appear for trial call or for trial, which proceeded in his absence, beginning October 16. Croteau testified in support of his case, offered Rosen's deposition testimony, and introduced 148 exhibits. Prior to entry of judgment, Croteau sent Rosen a copy of a draft proposed judgment. Rosen replied by email on October 20, 2017, stating, "Can we talk about things on Monday? There's no way I will ever be able to pay that judgment and we should talk about options. Thanks."
The trial court entered judgment on November 3, 2017, awarding $856,800 in noneconomic damages, $24,585.35 in economic damages, $4,799.49 in prejudgment interest, and $500,000 in punitive damages. The trial court subsequently entered a costs award of $4,078.89. In response to Croteau's email attaching the judgment, on Tuesday, November 14, 2017, Rosen replied, "Are you available to talk about solutions Thursday afternoon?"
D. Motion for Relief from Judgment
In May 2018, Rosen—now represented by counsel—moved for relief from judgment. He claimed that, at the time of trial, he was experiencing emotional, mental, and medical disabilities that constituted excusable neglect for his failure to appear and adequately defend himself. He contended his motion for relief was timely and argued the punitive damages award was excessive. He argued that "[f]airness and justice" justified granting his motion, to allow him to present evidence at trial on issues of lack of malice and causation of damages.
In support of his motion, Rosen submitted a declaration stating that, "in retrospect," he realized that filing two actions on behalf of the vexatious litigants was a mistake, but he claimed he lacked malicious intent. He further claimed that being named in the instant malicious prosecution action "triggered and activated tremendous feelings of guilt and shame," such that he was unable to even disclose the action to his wife, who only learned of the judgment when their joint checking account was levied. He claimed the action against him made him feel "that it would make [him] look bad to the outside world if the case was discovered or discussed."
He stated that he represented himself in the malicious prosecution action because neither he nor his firm had professional liability insurance, and he lacked the financial resources to retain counsel. He claimed he could not afford another expert after his friend, who had offered to work at a reduced rate, died suddenly. He explained his condition worsened during the duration of the action, exacerbated by financial stress, poor health, and the sudden death of his friend and designated expert. Rosen stated:
"Sincerely, my failure to attend trial . . . was not the result of any lack of effort, complacency, disregard, or lack of respect . . . . Rather, it was a result of my serious illness, medical condition and mental disabilities which I can now recognize only with the input and assistance of my treating doctors and therapists, the increase in my medication, and intense therapy. Because my judgment was clouded and my thought processes were impaired as it related to this case in 2017, and because I had no previous experience with such symptoms, I did not realize I was so cognitively and psychologically impaired and thus I was unable to make further efforts to tell colleagues or my therapists about my condition. Finally, because of this impairment I could not bring myself to attend trial, for which I am profoundly sorry and apologetic . . . ."
Rosen's wife submitted a declaration explaining that she only learned of the judgment when she observed money had been levied from her joint bank account in March 2018. When she learned of the judgment, she confronted Rosen, who told her he "could not cope with the lawsuit because of deep feelings of shame." She retained counsel and helped counsel prepare a defense.
Rosen's therapist, Dr. Victoria Curea, submitted a declaration in support of the motion. Dr. Curea stated that she had been treating Rosen weekly since March 2016, when she initially diagnosed him with depressive disorder and anxiety disorder. By January 2017, Rosen's depressive symptoms had increased from "classifiably 'mild' to 'moderate.' " Since April 2017 to March 2018, she opined Rosen had been suffering from major depressive disorder and generalized anxiety disorder. She opined that Rosen "had an established pattern of using denial to cope with perceived threats to his ego," and "frequently repressed any knowledge of his own interpersonal failings to avoid crushing feelings of humiliation." Dr. Curea opined that "these medical conditions paralyzed Mr. Rosen from effectively representing himself in this matter and it is medically likely that these conditions were a significant contributing factor in his failure to attend trial in July and October 2017."
In response, Croteau lodged several objections to Rosen's evidence, including an objection to Dr. Curea's ultimate conclusion that Rosen's "medical conditions paralyzed [him] from effectively representing himself . . . and . . . were a significant contributing factor in his failure to attend trial . . . ." Croteau argued Rosen's failure to attend trial was not excusable and was simply another incidence of Rosen snubbing the judicial process, just like when he filed the frivolous anti-SLAPP motion and pursued and abandoned an appeal of the fee order simply as a delay tactic. Croteau pointed out that, during the time the trial was ongoing, Rosen was actively litigating another case in federal court. He argued Rosen's purported excuse was not believable, and in reality, Rosen simply viewed Croteau's case "as one only of minimal economic damages" (approximately $25,000 of attorney fees and costs incurred in defending the underlying cases). Croteau also argued Rosen's motion was not made within a reasonable time from judgment, and the punitive damages award was not excessive.
Croteau attached a copy of a declaration Rosen filed in federal court on October 11, 2017—just two days before trial call in the instant action. In the declaration, Rosen explained to the federal court why he was forced to postpone a client's property inspection originally scheduled for October 2, 2017. He did not tell the federal court he was supposed to be in trial in San Diego on October 16, or mention his physical or mental health condition or his purported inability to cope. The federal court ordered the inspection to proceed the morning of October 16—the first day of trial in the instant action.
E. Order Denying Motion for Relief from Judgment
After a hearing, the trial court issued a four-page order denying Rosen's motion. The court sustained Croteau's objections to Dr. Curea's declaration, but noted that, "even if it had overruled all of the Plaintiffs' evidentiary objections its ruling would not change." The court noted that it had presided over the case since it was first filed in November 2015 and had ruled on several motions, including Rosen's special motion to strike, Croteau's motion for attorney fees after denial of that motion, and Croteau's motions to compel. The court observed that "it appeared to the [c]ourt that Rosen generally took the case less seriously than others might have but there was nothing to suggest to the [c]ourt that Rosen suffered from any health problem or that something was amiss." The court observed that Rosen appeared at some hearings and neglected to appear at others, but "[t]he only real hearing that Rosen failed to attend that had a significant consequence was the trial." The court further observed that Rosen had attended the trial readiness conference on June 30 during the time Dr. Curea stated Rosen was suffering from major depressive disorder and generalized anxiety disorder. "There was nothing to indicate any health problems or issues with Rosen and the opinion that he was [']paralyzed['] at the time of the trial lacks foundation." The court observed that Rosen's statements in his declaration supported the conclusion his decisions were motivated by financial concerns, not mental health issues. The court distinguished the legal authorities cited in Rosen's motion and concluded, "The [c]ourt does not take lightly Defendants' claims of Rosen's health issues or the significant amount of this judgment. However, based on its own observations, the [c]ourt simply concludes that Rosen's decision to not attend trial was a choice he made (as he did with other hearings) and was not the product of excusable neglect." The court also found that the motion was not timely, as the delay between the November judgment and the May motion was unreasonable given Rosen's communications in October and November regarding finding " 'solutions' " to the judgment. Finally, the court observed that the motion for relief from judgment was an improper procedural vehicle to challenge the punitive damages award, but nonetheless found that the evidence before the court at the time of trial adequately supported the punitive damages award.
DISCUSSION
I.
Rosen Law Firm Is Dismissed from this Appeal
As a preliminary matter, we address Rosen Law Firm's status as a suspended corporation.
On January 13, 2020, Rosen's license to practice law was ordered inactive by the State Bar of California. Because Rosen Law Firm cannot represent itself on appeal and must be represented by licensed counsel in proceedings before this court, on January 22, we issued an order directing Rosen Law Firm to retain new counsel and to provide this court written notice of contact information for new counsel within 30 days. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) Around this time, we were informed the California Secretary of State website reported Rosen Law Firm was a suspended corporation, which would prevent it from appealing from an adverse judgment. (Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306.) We thus directed Rosen Law Firm, through counsel, to notify the court of the status of the corporation and its ability to pursue this appeal.
We take judicial notice of the record of Rosen's law license status, available at <http://members.calbar.ca.gov/fal/Licensee/Detail/156151> as of May 13, 2020, archived at <https://perma.cc/L4ZL-XWLW>. (Evid. Code, §§ 452, subd. (h), 459, subd. (a); see, e.g., People v. Vigil (2008) 169 Cal.App.4th 8, 12, fn. 2.)
On February 18, 2020, Rosen's eligibility to practice law was restored. Thus, it became unnecessary for Rosen Law Firm to retain new counsel. Rosen has informed the court that he is working with the Franchise Tax Board to correct the firm's suspended status, however, Rosen Law Firm remains a suspended corporation. When its corporate rights are suspended, a corporation may not prosecute or defend an action and may not appeal from an adverse judgment. (Bourhis v. Lord (2013) 56 Cal.4th 320, 324.) We therefore dismiss the appeal of Rosen Law Firm. This matter may proceed only with respect to Glenn Rosen's individual appeal.
II.
Issues Raised by Rosen on Appeal
Rosen contends the trial court erred in its consideration of the expert evidence and abused its discretion in concluding Rosen's neglect was not excusable and in finding the motion was not made in a reasonable time. Finally, Rosen contends the court erred in failing to excuse him from a damages award that he contends is excessive.
A. Applicable Law
A trial court may relieve a party from a judgment that has been entered against him only in limited circumstances. Section 473, subdivision (b), provides in relevant part that "[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." A party must seek relief "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (Ibid.)
"Our review of the trial court's ruling is highly deferential." (McClain v. Kissler (2019) 39 Cal.App.5th 399, 413 (McClain) [affirming denial of motion for relief from default where trial court rejected attorney defendant's claim of excusable mistake and neglect].) A trial court order denying relief under section 473, subdivision (b) is scrutinized more carefully than an order granting relief; " '[b]ut that said, "[a] motion to vacate a default and set aside judgment (§ 473) 'is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse . . . the exercise of that discretion will not be disturbed on appeal.' [Citations.] Moreover, all presumptions will be made in favor of the correctness of the order . . . ." ' " (McClain, at p. 413.) " 'Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court.' " (Id. at p. 414.)
Where there is a conflict in the facts presented to the trial court, the trial court's determination of the controverted facts will not be disturbed. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora).) " 'The burden is on the complaining party to establish abuse of discretion, and the showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion.' " (McClain, supra, 39 Cal.App.5th at p. 414.)
" 'A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.' [Citation.] In determining whether the attorney's mistake or inadvertence was excusable, 'the court inquires whether "a reasonably prudent person under the same or similar circumstances" might have made the same error." ' [Citation.] In other words, the discretionary relief provision of section 473 only permits relief from attorney error 'fairly imputable to the client, i.e., mistakes anyone could have made.' [Citation.] 'Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.' " (Zamora, supra, 28 Cal.4th at p. 258.)
B. The Trial Court Did Not Abuse Its Discretion When It Concluded Rosen's Neglect Was Not Excusable
1. Evidentiary Objections
The trial court sustained objections to Dr. Curea's declaration, including an objection to her ultimate opinion that "these medical conditions paralyzed Mr. Rosen from effectively representing himself in this matter and it is medically likely that these conditions were a significant contributing factor in his failure to attend trial in July and October 2017." Rosen contends the trial court abused its discretion when it sustained the objections "in that it substituted its own view of Rosen's mental state over and above that of Dr. Curea, a medically trained professional."
The court sustained Croteau's objections on the ground that the expert's opinion was speculative, conjecture, or otherwise improper (Evid. Code, §§ 801, subd. (b), 802, 803) and lacked foundation (id., §§ 702, 802). The court also sustained Croteau's objections to supplemental declarations first submitted along with Rosen's reply papers. Rosen does not challenge these evidentiary rulings, and we would find no abuse of discretion in any event. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [trial court did not abuse its discretion in declining to consider evidence first submitted on reply].)
We need not address whether the trial court abused its discretion in ruling on the evidentiary objections, because the court expressly noted that "even if it had overruled all of the Plaintiffs' evidentiary objections its ruling would not change." As discussed further post, the court in fact considered and rejected Dr. Curea's opinion based on the observation that the expert did not explain what she meant by "paralyzed," and that the statement was conclusory and inconsistent with all available evidence. Any presumed error in sustaining the evidentiary objections was therefore harmless. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332 ["Even where a trial court improperly excludes evidence, the error does not require reversal of the judgment unless the error result[s] in a miscarriage of justice."]; Cal. Const., art. VI, § 13.)
2. Consideration of Expert Opinion
Rosen contends that when the trial court considered and rejected the expert's opinion, it abused its discretion by substituting its own view of Rosen's mental state over that of the expert. We disagree.
It is true that the trial court "must not weigh an [expert] opinion's probative value or substitute its own opinion for the expert's opinion" when it is acting as a gatekeeper to determine the admissibility of an expert opinion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 772.) However, it is also true that the factfinder decides what weight to give the expert's opinion. (In re Scott (2003) 29 Cal.4th 783, 823 (Scott).)
Here, the court considered and rejected the expert's ultimate conclusion—that Rosen's medical conditions "paralyzed" him from effectively representing himself and "were a significant contributing factor in his failure to attend trial." The court observed that other evidence was unaccounted for in the expert's description of events, and inconsistent with the expert's conclusions. For example, the expert's declaration did not acknowledge that, during June through November 2017, when the expert claimed Rosen's condition had increased in severity to "[m]ajor [d]epressive [d]isorder and [g]eneralized [a]nxiety [d]isorder," Rosen participated in a trial readiness conference in the instant case, continued to aggressively litigate his other active cases, and communicated with Croteau's counsel regarding finding alternative "solutions" and "options" to the judgment against him. The trial court could reasonably conclude that the expert's opinions were informed only by facts and circumstances provided by Rosen—and Rosen failed to disclose pertinent information—or the expert did not adequately consider all relevant information in formulating her opinions. The court concluded the expert's opinion that Rosen's health conditions "paralyzed" him and prevented him from attending trial was not consistent with the totality of the circumstances, and was therefore conclusory and unpersuasive. This was not an abuse of discretion. "[W]here the facts underlying the expert's opinion are proved to be false or nonexistent, not only is the expert's opinion destroyed but the falsity permeates his entire testimony; it tends to prove his untruthfulness as a witness." (Kennemur v. State of California (1982)133 Cal.App.3d 907, 923-924.) Under these circumstances, the trial court, as fact finder, may properly accord the expert's opinion minimal weight. (Scott, supra, 29 Cal.4th at p. 823.)
In sum, we reject Rosen's contention that the trial court improperly substituted its opinion for the expert's; rather, we find the court properly discounted the expert's opinion based on its questionable foundation.
3. The Trial Court's Conclusion Regarding Inexcusable Neglect
Rosen challenges the trial court's conclusion that Rosen's behavior was not excusable. The court's conclusion was supported by the record and it did not abuse its discretion. (McClain, supra, 39 Cal.App.5th at pp. 413-414.) The court noted that Rosen's own statements demonstrated his behavior was motivated by his financial condition, not by some physical or mental inability to attend trial. Additionally, rather than attending trial, Rosen was working on other cases, and, around the time the judgment was being prepared, Rosen was communicating with Croteau's counsel regarding a potential resolution of the case. Where "appellant had multiple opportunities to avoid the entry of" judgment against him, but instead "elected to do nothing," "[t]he trial court could reasonably conclude that the . . . judgment was not the result of any mistake, inadvertence, surprise or excusable neglect on the part of appellant, but rather, was the consequence of appellant's failure to take reasonably prudent steps to avoid entry of judgment." (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206-1207 [holding trial court did not abuse its discretion in denying relief under section 473, subdivision (b)]; see also Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472-473 [holding relief from judgment is properly denied when a party has not been prevented from participating in an action, had an opportunity to present his case to the court, and contributed to the circumstances giving rise to the judgment obtained].)
Rosen's contention that Croteau submitted "absolutely no competent evidence" to rebut Rosen's evidence and the court made its determination "upon its own observations based upon a prior court appearance months earlier," is therefore incorrect.
Rosen cites various cases in which trial courts concluded a defendant's medical condition justified relief from judgment. These cases are distinguishable. In each case, the trial court was persuaded by evidence that the mistake or neglect was excusable because of mental (or similar) disability, and the appellate court held the trial court did not abuse its discretion in relieving the party from judgment. (See In re Marriage of Kerry (1984) 158 Cal.App.3d 456, 466 [affirming trial court's order setting aside judgment where trial court inferred wife entered into stipulated judgment due to "her own mistake, excusable because of her own mental confusion"]; Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 31 [affirming trial court's order relieving party from judgment where the trial court found "a wholesale disintegration of the attorney's professional capacity because of a medical crisis"].) Here, by contrast, the trial court was not persuaded that Rosen was cognitively incapacitated, but rather concluded he was merely derelict in his duties.
Rosen also relied on Karlein v. Karlein (1951) 103 Cal.App.2d 496, in which the appellate court reversed the trial court order denying relief. The Karlein court observed that the defendant was entitled to relief from default because, at the time default was entered, he was committed to a mental institution, and plaintiff was aware of that fact. In that case, there was no doubt the defendant "was in a disturbed mental state." (Id. at p. 498.) By contrast, here, Rosen was actively engaged in other litigation during the time of trial. Although Rosen claimed his condition only affected his ability to attend this trial, while he continued to meet and maintain other professional obligations, the trial court was not persuaded. The trial court observed that other factors (e.g., Rosen's financial concerns) contributed to his failure to appear for trial, and concluded his neglect was not excusable. The cases cited by Rosen are inapposite here and fail to demonstrate that the trial court abused its discretion.
C. Unreasonable Delay in Filing
"The party seeking relief under section 473 must also be diligent." (Zamora, supra, 28 Cal.4th at p. 258.) An application for discretionary relief under section 473 must be made "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (§ 473, subd. (b).) Whether conduct is reasonable is nearly always a question for the fact finder. (See Chateau Chamberay Homeowners Assn. v. Associated Internat. Ins. Co. (2001) 90 Cal.App.4th 335, 346.) Here, we conclude the trial court did not abuse its discretion in concluding Rosen unreasonably delayed in filing his request under section 473.
Rosen filed his motion just short of the six-month outer deadline under section 473, subdivision (b). Rosen contends that once his wife learned of the judgment, she retained counsel and acted diligently in seeking relief, with newly retained counsel filing the motion for relief within several weeks of discovering the adverse judgment. However, the trial court observed that, around the time judgment was entered, Rosen reached out to opposing counsel to find "solutions" to the judgment, and it was thus unreasonable to delay before seeking relief. "The concept of 'excusable' . . . is not synonymous with a get-out-of-jail-free card for parties who later come to regret past inaction or sitting on their rights." (McClain, supra, 39 Cal.App.5th at p. 414.) "In reviewing the trial court's factual findings regarding excuse and diligence, we defer to the trial court's assessments of credibility and the weight of the evidence and do not interfere with its determinations of these matters." (Id. at p. 415.) The trial court reasonably concluded that Rosen—who was capable of reaching out to opposing counsel to resolve the case—could likewise have exercised diligence in filing a motion under section 473.
Even if the trial court erred in concluding the motion was not timely filed, any error would be harmless based on our previous conclusion that the court did not abuse its discretion in denying Rosen's motion on the merits.
D. Punitive Damages Award
Rosen contends the $500,000 punitive damages award is excessive and unsupported by the evidence of his financial condition. He asserts that the trial court issued the damages award "almost as if from a state of pique," and that it ignored his "demonstrated lack of assets" and "zero net worth." We reject Rosen's claim because the punitive damages award is not subject to review in this appeal, and, because the record he provided is inadequate, he cannot meet his burden of demonstrating error.
On appeal, Rosen challenges the entire damages award of approximately $1,500,000, which includes $500,000 in punitive damages. In the trial court, however, Rosen only challenged the punitive damages. He cannot raise new issues on appeal. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316 ["a litigant may not change his or her position on appeal and assert a new theory"]; A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1804 ["It is well established that a party may not raise new issues on appeal not presented to the trial court."].) We address his challenge to punitive damages only, although the same defects which preclude relief apply to the entire damages award.
1. The Award Is Not Subject to Review
The punitive damages award was part of the judgment entered in November and was reviewable on appeal from that judgment. (§ 906 ["Upon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party, including, on any appeal from the judgment, any order on motion for a new trial . . . . The provisions of this section do not authorize the reviewing court to review any decision or order from which an appeal might have been taken"], italics added.) However, the current appeal lies from the post-judgment order denying relief from judgment. Thus, the punitive damages award is not subject to review in this appeal. (See Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 [" '[T]o allow the appeal from [an order raising the same issues as those raised by the judgment] would have the effect of allowing two appeals from the same ruling and might in some cases permit circumvention of the time limitations for appealing from the judgment.' "].)
2. The Record Is Inadequate
"[A]n award of punitive damages cannot be sustained on appeal unless the trial record contains meaningful evidence of the defendant's financial condition." (Adams v. Murakami (1991) 54 Cal.3d 105, 109.) In the trial court, the plaintiff bears the burden of producing such evidence. (Id. at p. 119.) On appeal, we review a punitive damages award for substantial evidence and reverse only where the entire record indicates the award was " ' "rendered as the result of passion and prejudice." ' " (Kelly v. Haag (2006) 145 Cal.App.4th 910, 916.)
Rosen does not challenge the punitive damages award on constitutional grounds, which would be subject to a de novo review. (Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal. 4th 1159, 1172.)
"[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifie[d] reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) " 'In the absence of a contrary showing on the record, all presumptions in favor of the trial court's action will be made by the appellate court.' " (Id. at p. 609; see Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891 [appellate courts review punitive damages awards for substantial evidence, and " 'consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment' "].)
Rosen contends that the trial court should not have imposed punitive damages because of his "demonstrated lack of assets" and "zero net worth." But without a reporter's transcript, or an adequate substitute such as a settled statement, we cannot determine what evidence was submitted to the trial court on this issue. "[A] party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Rosen has not met his burden here. We therefore reject Rosen's claim that the punitive damages award is excessive and unsupported by the evidentiary record. (See 569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 434, fn. 9 ["[I]f the record on appeal does not contain all of the documents or other evidence considered by the trial court, a reviewing court will 'decline to find error on a silent record, and thus infer that substantial evidence' supports the trial court's findings."].)
See California Rules of Court, rule 8.120(b) [record of the oral proceedings].
Croteau provided some evidence from the trial regarding Rosen's financial condition, asserting that Rosen made a $1,915,000 profit on the sale of his home in 2014, that Rosen's firm's average monthly revenue between February 2013 and August 2017 was over $64,000, and that Rosen's average monthly after-tax wages exceeded $15,500. "Normally, evidence of liabilities should accompany evidence of assets, and evidence of expenses should accompany evidence of income." (Baxter v. Peterson (2007) 150 Cal.App.4th 673, 680.) Croteau suggests evidence of net worth may not be the appropriate benchmark here, and evidence of net income is preferable, because "net worth is subject to easy manipulation by a defendant." Because Rosen failed to provide an adequate record, and the punitive damages award is not subject to review in any event, we do not address whether this evidence standing alone was sufficient to establish Rosen's financial condition at the time of trial.
DISPOSITION
Appellant Rosen Law Firm is dismissed from the appeal. The order is affirmed. Respondents are entitled to their costs on appeal.
GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.