Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV128915
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Plaintiff Darren Duffy brought a tort action against Corinna Loveland (defendant), his former sister-in-law, and Lena Fuentes (Fuentes), his former wife. Plaintiff and Fuentes had been involved in prior court proceedings involving the custody of their minor child. In the present tort action, plaintiff obtained entry of default on the complaint against defendant and, following a prove-up hearing, was awarded $135,000 in damages in a default judgment against defendant. Thereafter, plaintiff voluntarily dismissed his claims against Fuentes.
On appeal, defendant contends that the trial court had “jurisdiction” to consider her requests to continue the default prove-up hearing. She also contends that the default prove-up hearing, which pertained to plaintiff’s claims against her, should not have taken place while plaintiff still had claims pending against Fuentes. Lastly, defendant argues that there is an “absence of evidence” to support the amount of damages awarded against her.
For reasons that we will explain, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2008, plaintiff filed a civil action against defendant and Fuentes. Plaintiff is the “ex-spouse” of Fuentes, and the two have a minor child. Fuentes and defendant are sisters. According to the complaint, Fuentes and defendant falsely stated to others that plaintiff engaged in wrongdoing with the minor child. Plaintiff’s child custody and visitation rights were “impair[ed]” as a result. Fuentes also allegedly made false statements to the police, including that plaintiff violated a restraining order. Plaintiff was arrested and criminally prosecuted although the charges were later dismissed. In the civil complaint against defendant and Fuentes, plaintiff alleged defamation (two claims), negligent infliction of emotional distress, and “intentional infliction of distress.” Plaintiff also alleged a claim against Fuentes for malicious prosecution.
We assume that Fuentes filed an answer to the complaint because a default was not entered against her. The record on appeal does not contain a copy of Fuentes’s answer. Defendant did not file an answer, and a default was entered against her. The record on appeal does not contain a copy of the request for entry of default or indicate when the default was entered.
In early 2010, a default prove-up hearing was held over the course of three days regarding plaintiff’s claims against defendant. On the first day of the hearing, defendant and Fuentes sought to have the hearing continued until after the litigation between plaintiff and Fuentes was resolved at trial, or to continue the hearing so that damages might be established in one proceeding concerning both defendants. The court denied the request for a continuance.
Thereafter, during the first day of the default prove-up hearing, plaintiff testified in support of his request for compensatory and punitive damages. Plaintiff testified that defendant falsely stated to others, including plaintiff’s family, his daughter’s medical provider, and the police, that he had engaged in wrongdoing with his daughter. After defendant made the statements, plaintiff’s custody and/or visitation rights concerning his daughter were “interrupted” for one and a half months. Plaintiff suffered “distress from the impairment in [his] relationship with” his daughter. He had trouble sleeping, suffered headaches, cried “a few times, ” was “very nervous, ” and felt a “lot of stress.” Because defendant had made the false accusation to plaintiff’s family, including his father and sister, he had to talk to them about it. This made plaintiff feel “uncomfortable, hurt, and vulnerable.” Plaintiff also faced “additional scrutiny” by the parents and teachers at the school that his daughter attended. He testified that his reputation was “damaged” as to the person who “runs” the school and his daughter’s teacher. Further, because the false statement was contained in his daughter’s medical records, plaintiff was “concerned” that medical providers would see the statement again if medical care was sought in the future. Plaintiff also testified that his ability to obtain work was affected, and he incurred attorney fees in attempting to see his daughter again. Plaintiff testified that he was “humiliate[d]” and “embarrass[ed], ” and that “[i]t was extremely disgraceful” to have his personal reputation “impacted.” Plaintiff also sought punitive damages because the allegations that were made against him were “horrible” and false, and he had “been put through this twice” by the same two defendants. After plaintiff testified, the trial court sought briefing from plaintiff’s counsel on certain issues and continued the hearing.
Plaintiff later withdrew his request for attorney fees as part of the damages being sought against defendant.
At the beginning of the second day of the default prove-up hearing, defendant again sought a continuance. Defendant’s counsel contended, among other things, that defendant and Fuentes were “join[ed]” in the complaint, and that a successful defense “exonerat[ing]” Fuentes would also “exonerate” defendant. Defendant’s counsel also asserted that if damages were awarded against defendant while Fuentes subsequently prevailed in the litigation, there would be “two distinct judgments” in the case. In opposition, plaintiff’s counsel argued that defendant had “defaulted” and had no right to appear, and that the default prove-up hearing should proceed forward. The trial court determined that defendant’s counsel did not have “standing” to make the arguments to the court in view of the default entered against defendant, and it denied the request for a continuance. The court thereafter had a discussion with plaintiff’s counsel regarding the damages being sought and again continued the hearing.
On the third day of the default prove-up hearing, the trial court awarded plaintiff $135,000 in damages against defendant. The court explained that the total award was based on $10,000 for “pain and suffering, ” $75,000 for “emotional distress, ” and $50,000 for “damage to [plaintiff’s] reputation.” The court stated that it was not awarding damages for loss of earnings because such damages were “too speculative.” The court also refused to award punitive damages because there was insufficient evidence of defendant’s net worth.
On February 8, 2010, a default judgment was filed in favor of plaintiff and against defendant in the amount of $135,000. Plaintiff served defendant with a notice of entry of judgment on February 9, 2010, and one week later he filed the notice.
On March 23, 2010, defendant filed a notice of appeal regarding the default judgment.
On April 14, 2010, plaintiff voluntarily dismissed the action against Fuentes.
On appeal, plaintiff and defendant both refer to the dismissal of Fuentes from the action in the superior court. On our own motion, we take judicial notice of the dismissal in the superior court file. (Evid. Code, § 452, subd. (d).)
On April 27, 2010, defendant filed a motion for an order vacating the default judgment. In May 2010, plaintiff filed written opposition to the motion. The motion was apparently denied by the trial court.
The record on appeal does not contain a copy of the trial court’s order although both parties in their appellate briefs refer to the denial of the motion by the trial court.
III. DISCUSSION
Requests for Continuance
On appeal, defendant contends that the trial court had “jurisdiction” to consider her requests to continue the default prove-up hearing. She also contends that the default prove-up hearing, which pertained to plaintiff’s claims against her, should not have taken place while plaintiff still had claims pending against Fuentes. Defendant asserts that she and Fuentes were alleged to be jointly liable, the liability of one depended on the liability of the other, and a trial on the claims against Fuentes might have resulted in an “entire exoneration” of both Fuentes and her. Defendant asserts that the trial court “deprived [her] of this benefit” by not continuing the default prove-up hearing.
Plaintiff responds that the trial court properly proceeded with the default prove-up hearing. Plaintiff contends that the cases cited by defendant in support of the argument that hearing should have been continued are “contract and partnership decisions” and do not apply to the instant “tort liability case where each named defendant committed separate wrongful acts.” Plaintiff also argues that defendant fails to show prejudicial error. Plaintiff contends that in view of the dismissal of Fuentes from the case, “there cannot possibly be any judgment that can be entered in favor of Fuentes” and “[t]here cannot be a judgment entered regarding Ms. Fuentes that would support a finding that there is no liability against” defendant.
As an initial matter, we observe that the issues that a defendant may properly raise in an appeal from a default judgment are limited, but include questions of jurisdiction. (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 824 (Steven M. Garber & Associates).)
In general, a trial court’s decision not to grant a continuance will be upheld on appeal unless the court abused its discretion. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.) Here, assuming the trial court had the jurisdiction to consider defendant’s requests for a continuance as well as the underlying basis for the request, we determine that reversal of the judgment is not warranted.
In support of her contention that the default prove-up hearing should not have taken place while plaintiff still had claims pending against Fuentes, defendant cites, among other authorities, Mirabile v. Smith (1953) 119 Cal.App.2d 685 (Mirabile), and Adams Mfg. & Engineering Co. v. Coast Centerless Grinding Co. (1960) 184 Cal.App.2d 649 (Adams Mfg. & Engineering). In Mirabile, the appellate court explained that when an action is based on joint, rather than several, liability, and “if the defense presented by the appearing defendants is sustained, no judgment could or should be entered against [the] defaulting defendant.” (Mirabile, supra, 119 Cal.App.2d at p. 689.) In Adams Mfg. & Engineering, the appellate court stated: “where there are two or more defendants and the liability of one is dependent upon that of the other the default of one of them does not preclude his having the benefit of his codefendants establishing, after a contested hearing, the nonexistence of the controlling fact; in such case the defaulting defendant is entitled to have judgment in his favor along with the successful contesting defendant.” (Adams Mfg. & Engineering, supra, 184 Cal.App.2d at p. 655.) We observe that unlike Mirabile and Adams Mfg. & Engineering, which involved liability based on a contract, a debt, a partnership, and/or a joint venture, the instant case involves liability based on defamatory statements and the negligent and intentional infliction of emotional distress.
We need not decide, however, whether the trial court erred by proceeding with the default prove-up hearing concerning plaintiff’s claims against defendant while the claims against Fuentes were still pending. Assuming, without deciding, that the trial court should have held the default prove-up hearing only after a contested hearing was held on the claims against Fuentes, defendant fails to show that the purported error warrants reversal of the judgment. “Pursuant to article VI, section 13, of the California Constitution, ‘[n]o judgment shall be set aside, or new trial granted, in any cause, ... or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ ‘A miscarriage of justice... occurs... when it appears reasonably probable that were it not for the error a result more favorable to the appellant could have been obtained.’ [Citation.] ‘Prejudice is not presumed and the burden is on the appellant to show its existence.’ [Citation.]” (Candelaria v. Avitia (1990) 219 Cal.App.3d 1436, 1444 (Candelaria); accord, Taylor v. Varga (1995) 37 Cal.App.4th 750, 759, fn. 9, quoting Candelaria.) Here, plaintiff ultimately dismissed Fuentes from the case, apparently without a contested hearing on the claims against Fuentes. In view of these circumstances, where Fuentes is no longer a party to the case, defendant on appeal fails to articulate how she would be able to benefit from the presentation of a successful defense by Fuentes. (See Mirabile, supra, 119 Cal.App.2d at p. 689; Adams Mfg. & Engineering, supra, 184 Cal.App.2d at p. 655.) In the absence of a showing by defendant that she was prejudiced by the court’s refusal to continue the default prove-up hearing, we determine that even if there was error, it does not warrant reversal of the judgment. (Candelaria, supra, 219 Cal.App.3d at p. 1444.)
Damages
Next, defendant argues that there is an “absence of evidence” to support the amount of damages awarded against her.
Plaintiff responds that defendant’s claim on appeal is not “adequately developed” or supported by sufficient citations to the record and is otherwise without merit.
In an appeal from a default judgment, a defendant may challenge the damages awarded as excessive or speculative. (Steven M. Garber & Associates, supra, 150 Cal.App.4th at p. 824; Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1150.) However, as we will explain, defendant as an appellant fails to meet her burden to affirmatively demonstrate error.
When a challenge is made to the sufficiency of the evidence, “we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶]... Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) The test “is simply whether there is substantial evidence in favor of the respondent, ” that is, whether the evidence is “of ‘ “ponderable legal significance, ” ’ ‘ “reasonable in nature, credible, and of solid value....” ’ [Citations.]” (Id. at p. 631.)
Where the sufficiency of the evidence is challenged on appeal, “the reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant’s burden to demonstrate otherwise. [Citation.]” (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368 (Baxter Healthcare).) “[A] general unsupported denial that any evidence sustains the findings is not the ‘demonstration’ contemplated under the rule.” (Green v. Green (1963) 215 Cal.App.2d 31, 35.) When challenging the sufficiency of the evidence, the appellant is required to provide a summary of all of the evidence with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C), (2)(C); Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman & Clark); Baxter Healthcare, supra, 120 Cal.App.4th at p. 368.) The appellant “also must show how the evidence does not sustain the challenged finding. [Citations.]” (Baxter Healthcare, supra, 120 Cal.App.4th at p. 368.) “If the appellant fails to set forth all of the material evidence, its claim of insufficiency of the evidence is waived. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881;...)” (Baxter Healthcare, supra, 120 Cal.App.4th at p. 368; see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 (Nwosu).)
At the default prove-up hearing, plaintiff testified in support of his request for damages, including the false statements that defendant made, to whom the statements were made, and the impact on him. As a result of defendant’s false statements, plaintiff was prevented from seeing his daughter for a period of time. Plaintiff described the emotional and physical effect the false statements had on him, as well as the impact on his reputation. The trial court ultimately awarded a total of $135,000 in damages, which was based on $10,000 for “pain and suffering, ” $75,000 for “emotional distress, ” and $50,000 for “damage to [plaintiff’s] reputation.” On appeal, defendant contends that there was “an absence of evidence of damages” presented at the prove-up hearing and that what was presented was only “a very generalized overview of claimed damages.” In making this argument, defendant does cite some testimony concerning plaintiff’s claim for lost wages. The trial court made clear, however, that its award of damages did not include “loss of earnings” because such damages were “too speculative.” Defendant otherwise fails to set forth the evidence presented during the default prove-up hearing relevant to her claim of lack of evidence to support the damages award, and she fails to explain how that evidence does not support the damages award. We therefore determine that she has waived her claim on appeal by failing to meet her burden to affirmatively demonstrate error. (Foreman & Clark, supra, 3 Cal.3d at p. 881; Baxter Healthcare, supra, 120 Cal.App.4th at p. 368; Nwosu, supra, 122 Cal.App.4th at pp. 1246-1247.)
IV. DISPOSITION
The judgment is affirmed. Costs are awarded to respondent Darren Duffy.
WE CONCUR: MIHARA, J., LUCAS, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.