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Lopez v. Berliner

California Court of Appeals, Fifth District
Sep 22, 2008
No. F053561 (Cal. Ct. App. Sep. 22, 2008)

Opinion


JOSE LOPEZ, Plaintiff and Respondent, v. BERTHA BERLINER, Defendant and Appellant. F053561 California Court of Appeal, Fifth District September 22, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appeal from a judgment of the Superior Court No. VCU-06-219808 of Tulare County. Lloyd L. Hicks, Judge.

Law Office of David F. Candelaria and David F. Candelaria for Defendant and Appellant.

G. Scott Benker for Plaintiff and Respondent.

THE COURT

Before Vartabedian, Acting P.J., Gomes, J. and Hill, J.

OPINION

This is an appeal from judgment entered after trial to the court sitting without a jury. Defendant and appellant Bertha Berliner contends the trial court erred in denying her motion for new trial. We will affirm the judgment.

Facts and Procedural History

The predecessor in interest of plaintiff and respondent Jose Lopez gave a grant deed to Robert D. San Miguel to secure a loan on a commercial property in Dinuba. Lopez paid off the loan and demanded reconveyance of the property. Instead, and for reasons not disclosed in the record, San Miguel conveyed the property to appellant.

Respondent sued San Miguel and appellant to compel conveyance of the property to respondent and for recovery of lost rent. San Miguel defaulted and the proceedings against him were severed. Appellant filed an answer, although that is not contained in our record on appeal.

Appellant represented herself at various pretrial proceedings without the assistance of an interpreter. (The trial court made a finding of fact that appellant “on several occasions specifically declined an interpreter.”) At a case management conference on November 13, 2006, a settlement conference was set for March 20, 2007, and the trial was set for April 9, 2007.

Appellant appeared for the settlement conference and indicated a desire to take the case to trial. The trial dated was reconfirmed and a readiness conference for April 6 was cancelled.

Appellant nonetheless came to court on April 6. At that time she “was reminded that the Friday conference had been cancelled and that she should just come in Monday for her trial.” She did not appear for trial on April 9, 2007. Among other evidence received at trial was appellant’s response to respondent’s request for admissions. In that document, appellant admitted respondent’s documentation established that the conveyance to San Miguel was security for a loan and that the loan was paid in full. Other evidence at trial established that respondent had made those payments and that San Miguel had nevertheless conveyed the property to appellant instead of respondent.

After trial, the court entered judgment requiring appellant to convey the property to respondent and awarding damages of $1,000 per month as rent for the property from August 2005 through the date of conveyance.

Appellant filed a timely notice of intent to move for a new trial claiming, in the declaration contained in the motion, that she “was not present because I do not speak or understand English sufficiently well to understand the court proceedings.” She added: “Even though I had no interpreter, I would have appeared on April 9, 2007 if I was given notice of the April 9, 2007. [Sic.] I did not appear because I was not given notice.”

At the hearing on appellant’s motion, the trial court first noted that the grounds stated in the motion were not a proper basis for granting a new trial. However, the court considered the matter as a motion to set aside judgment pursuant to Code of Civil Procedure section 473, subdivision (b).

The court found that appellant had participated in all proceedings in English and had “on several occasions specifically declined an interpreter.” The court also found appellant had “ample actual” notice of the trial date. Finally, the court found appellant had not made any showing of prejudice: her discovery responses received at trial essentially admitted all of the elements of respondent’s case and nothing included in her motion suggested an ability to offer contrary evidence.

Appellant filed a timely notice of appeal.

Appellant appeared at all times in the trial court in propria persona; on appeal she is represented by counsel.

Discussion

Appellant contends she needed an interpreter, asked repeatedly for an interpreter, and missed the trial of the case because she misunderstood the trial date. She says “a different outcome would have been likely if Appellant had the opportunity to present a case at trial .…”

The trial court’s findings to the contrary are supported by substantial evidence, namely, the sworn declaration of respondent’s counsel and the proceedings that occurred in open court throughout the case. Those findings, which we are bound to accept on appeal (Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1166), support and, indeed, compel, the conclusions of the trial court. Appellant failed to demonstrate excusable neglect and was not entitled to relief from judgment. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.)

In any event, the record on appeal does not establish any likelihood whatsoever that an interpreter and a new trial would produce a result more favorable to appellant. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) Appellant does not attempt to articulate any cognizable prejudice, substituting instead the bald claim that “a different outcome would have been likely” if appellant had appeared for trial. In the absence of a showing of prejudice, we must affirm the judgment and the order denying appellant’s motion for new trial. (Ibid.)

Disposition

The judgment is affirmed. Respondent is awarded costs on appeal.


Summaries of

Lopez v. Berliner

California Court of Appeals, Fifth District
Sep 22, 2008
No. F053561 (Cal. Ct. App. Sep. 22, 2008)
Case details for

Lopez v. Berliner

Case Details

Full title:JOSE LOPEZ, Plaintiff and Respondent, v. BERTHA BERLINER, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Sep 22, 2008

Citations

No. F053561 (Cal. Ct. App. Sep. 22, 2008)