Opinion
G054196
11-13-2017
DNE ASSOCIATES, Plaintiff and Respondent, v. GEORGE A. MADRIGAL, Defendant and Appellant.
Stephen F. Lopez for Defendant and Appellant. Rachelle Singer for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2016-00875871) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed. Stephen F. Lopez for Defendant and Appellant. Rachelle Singer for Plaintiff and Respondent.
George A. Madrigal appeals from a judgment in favor of DNE Associates on its unlawful detainer complaint. Madrigal argues the trial court erred by entering judgment for DNE because Madrigal's demurrer was pending and the matter was not at issue. Although we conclude the court erred by setting the demurrer after the trial date, Madrigal has not established prejudice. We affirm the judgment.
FACTS
DNE purchased residential real property located at 5525 Blue Ridge Drive in Yorba Linda (the Property) at a non-judicial foreclosure sale. The following month, DNE served Madrigal with a three-day notice to quit due to foreclosure. When Madrigal did not comply, DNE filed an unlawful detainer complaint. On September 27, 2016, Madrigal filed a demurrer, and the trial court set the demurrer for hearing on December 9, 2016. On September 30, 2016, DNE requested a trial date be set and gave notice to Madrigal trial was set for October 17, 2016, in department C14. On October 13, 2017, DNE filed an opposition to Madrigal's demurrer.
On October 17, 2016, Madrigal, represented by counsel, appeared for trial. The assigned judge was absent. Madrigal's counsel requested the temporary judge continue the trial because of the pending demurrer. The temporary judge denied the request and ordered the matter "trailed" for the next available courtroom. The parties trailed all day, but were not sent to another courtroom. The temporary judge ordered the parties to return to department C14 the next day prepared for trial.
The next day, the assigned judge in department C14, Judge Robert J. Moss, returned and called the matter for trial. There was no reporter present for the trial. Madrigal's counsel orally requested the trial be continued. The trial court denied the request and trial commenced. The court ruled for DNE and awarded damages and costs. The court ordered counsel to prepare and submit the judgment. The court entered judgment for DNE and DNE's counsel served notice. Madrigal filed a notice of appeal.
Days later, Madrigal filed an ex parte motion to stay the eviction, which DNE opposed. The trial court denied the stay request. A writ of possession issued, and Madrigal was later evicted from the Property.
DISCUSSION
Madrigal contends the trial court erred by denying his oral motion to continue trial and conducting trial because his demurrer was pending and the case was not at issue. As we explain below, Madrigal has not established he was prejudiced.
"'Unlawful detainer actions are authorized and governed by state statute. (Code Civ. Proc., § 1161 et seq.[, all further statutory references are to the Code of Civil Procedure].) The statutory scheme is intended and designed to provide an expeditious remedy for the recovery of possession of real property.' [Citations.]" (Taylor v. Nu Digital Marketing, Inc. (2016) 245 Cal.App.4th 283, 288.)
Section 1170 states, "On or before the day fixed for his appearance, the defendant may appear and answer or demur." Thus, under the Unlawful Detainer Act (Code Civ. Proc., § 1161 et seq.), a demurrer constitutes an appearance. Section 1170.5, subdivision (a), provides: "If the defendant appears pursuant to [s]ection 1170, trial of the proceeding shall be held not later than the 20th day following the date that the request to set the time of the trial is made."
On September 27, 2016, Madrigal filed a demurrer, which the trial court set for hearing over two months later, on December 9, 2016. On September 30, 2016, DNE requested a trial date, which was proper pursuant to section 1170.5, subdivision (a). The trial court had to set trial within 20 days, which it set on October 17, 2016. The court erred by setting the hearing on the demurrer nearly two months after the trial date. But Madrigal has not demonstrated prejudice.
Unfortunately, there was no reporter present on the date set for trial. "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.]" (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Madrigal's arguments rest on evidence that is not before us and there is no error apparent on the face of the existing appellate record. Absent an appropriate record on appeal, we cannot reach the issue of whether Madrigal suffered prejudice.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.