Opinion
E065863
02-09-2018
KATHLEEN VON DEHN, Plaintiff and Respondent, v. LEANNA BONAMICI, Defendant and Appellant.
Leanna Bonamici, in pro. per., for Defendant and Appellant. Kathleen Von Dehn, in pro. per., Law Office of Ethan Ysais and Ethan Ysais 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INC1208485) OPINION APPEAL from the Superior Court of Riverside County. Ronald L. Johnson, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Leanna Bonamici, in pro. per., for Defendant and Appellant. Kathleen Von Dehn, in pro. per., Law Office of Ethan Ysais and Ethan Ysais for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Leanna Bonamici appeals from a judgment entered in favor of plaintiff Kathleen von Dehn, following a court trial on plaintiff's claims for (1) open book account, (2) account stated, and (3) quantum meruit. Defendant, in pro per, contends that because the statute of limitations had run, the trial court did not have jurisdiction to decide the matter. Defendant also argues that, even if the action was not time-barred, there was insufficient evidence to support the judgment.
We reject defendant's contentions on the ground the record is inadequate for purposes of determining whether defendant's contentions have any merit. Defendant has not provided this court with a reporter's transcript, settled statement, or agreed statement of the oral trial proceedings. We therefore affirm the judgment.
Plaintiff has filed in this court a motion for sanctions against defendant on the ground defendant's appeal is frivolous. While we conclude the appeal, filed in pro per, has no merit because the record is inadequate, it does not appear that defendant acted in bad faith or with improper motive in bringing her appeal. Sanctions are therefore denied.
II
FACTS AND PROCEDURAL BACKGROUND
In December 2012, plaintiff filed a complaint against defendant and Casablanca Studios Entertainment, Inc. (Casablanca), seeking recovery of money loaned to defendant by allowing her to use plaintiff's credit cards. Plaintiff's first amended complaint (Complaint) includes causes of action for (1) open book account, (2) account stated, and (3) quantum meruit. Plaintiff alleges in her Complaint that she loaned defendant and Casablanca (defendants) $137,962.66, which defendants failed to pay back. Plaintiff alleges in the quantum meruit cause of action that defendant failed to pay plaintiff back the funds loaned "on credit since on or about 03/11/2011." Plaintiff requested recovery of $137,962.66, plus prejudgment interest (10%), commencing on March 11, 2011, along with attorney's fees under Civil Code section 1717.5.
After the trial court set aside default against defendant, defendant filed an answer to plaintiff's Complaint denying the allegations and asserting affirmative defenses of (1) statute of limitations bar, (2) unclean hands, and (3) laches. As to codefendant Casablanca, plaintiff filed a request for entry of default.
The trial was set for January 21, 2016, in Department PS3. The case was designated an unlimited civil collections case and as a short cause court trial. Plaintiff, represented by counsel, filed a trial brief stating that plaintiff was requesting recovery of $210,236.94, consisting of $137,962.66 in damages, $66,167.03 in prejudgment interest, $548 in costs, and $4,559.25 in attorney's fees. Plaintiff stated the following facts in her trial brief. Plaintiff lent money to defendants by providing defendant with credit cards to be used to pay for expenses for a film production project. Defendants promised to pay back the loan. Around March 11, 2011, defendants defaulted on their obligation to pay back the money borrowed from plaintiff. Plaintiff claimed she was entitled to recover $210,236.94, plus interest, costs and attorney's fees, under the theories of account stated and quantum meruit.
The trial court tried the matter on January 21, 2016. According to the minute order for the court trial, both plaintiff, in pro per, and defendant appeared and testified. Defendant submitted various documents, which were considered by the court and returned to defendant. The trial court granted judgment in favor of plaintiff and against defendant in the amount of $102,000. The court also granted default judgment against Casablanca, which did not appear at the trial. Judgment totaling $152,915.97, was entered against defendants on March 2, 2016, consisting of $102,000 in damages, plus $49,993.97 in prejudgment interest (10%), $922 in costs, and no attorney fees. Defendant filed a notice of appeal of the judgment.
III
INADEQUACY OF RECORD ON APPEAL
As the party challenging the judgment, defendant has an affirmative obligation to provide an adequate record so that this court may assess whether the trial court erred. (Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.) By not providing this court with a reporter's transcript of the oral proceedings or documentary evidence presented at trial, defendant has not met her affirmative obligation to provide this court with an adequate record. (Ibid.)
The record on appeal consists solely of an appellant's appendix, which is limited to the following documents: case report printout (register of actions); plaintiff's declaration in lieu of testimony in support of request for entry of default judgment; plaintiff's first amended complaint, filed after default against defendant was set aside; defendant's answer to the complaint; plaintiff's trial brief; minute order for the trial on January 21, 2016; judgment filed on March 2, 2016; defendant's notice of appeal; defendant's first and second notices of designating record on appeal; memo/stop notice from trial court clerk; lists of credit card charges for 10 credit cards, with dates for charges between June 2005 and March 2011; and a trial court notice, dated January 5, 2016, of availability of court reporter in the Palm Springs Superior Court. Defendant asserts in her appellant's opening brief that the lists of credit card charges constitute hearsay evidence that was inadmissible under the business records exception, and the court did not consider the lists or admit them into evidence. The record on appeal does not reveal whether the lists were admitted into evidence, and there is no record of defendant objecting to the lists or any other evidence during the trial.
"Generally, appellants in ordinary civil appeals must provide a reporter's transcript at their own expense. [Citation.] In lieu of a reporter's transcript, an appellant may submit an agreed or settled statement." (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186; see, Cal. Rules of Court, rules 8.134, 8.137.) Under rule 8.120(b), "[i]f an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of these oral proceedings in the form of one of the following: [¶] (1) A reporter's transcript under rule 8.130; [¶] (2) An agreed statement under rule 8.134; or [¶] (3) A settled statement under rule 8.137."
Defendant has not included in the record on appeal any record of the oral trial proceedings. The record does not include a reporter's transcript or suitable substitute such as an agreed or settled statement. Therefore the record is insufficient to demonstrate reversible error under settled California law. "An appellate court begins with the presumption the judgment is correct [citation] and the appellant must prepare a record that adequately establishes the trial court committed prejudicial error." (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 122.)
"In numerous situations, appellate courts have refused to reach the merits of an appellant's claims because no reporter's transcript of a pertinent proceeding or a suitable substitute was provided. [Citations.] [¶] The reason for this follows from the 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 v. San Jose Construction Co., Inc., supra, 198 Cal.App.4th at p. 187, citing Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Therefore, "'if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.'" (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; Foust, at p. 187.)
Defendant argues she did not receive proper notice that court reporter services were unavailable at trial. Government Code section 68086, subdivision (d)(1) and (2), requires that the Judicial Council shall adopt rules to ensure that "parties are given adequate and timely notice of the availability of an official court reporter." This provision further requires that "if an official court reporter is not available, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter."
California Rules of Court, rule 2.956, contains provisions governing notice concerning the availability of official court reporters. Rule 2.956(c) provides in relevant part that, "[i]f the services of an official court reporter are not available for a hearing or trial in a civil case, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter." Government Code section 68086 and rule 2.956 indicate that, if an official court reporter is not available for a case, notice of this must be provided to the parties. To the extent an official court reporter is unavailable, a party may arrange for the presence of a court reporter and that the costs of paying such reporter may potentially be recoverable by the prevailing party.
Undesignated rule references are to the California Rules of Court.
Riverside County Superior Court Local rule 1095 states that "[t]he court's policy concerning court reporter availability is set forth in accordance with California Rule of Court 2.956, and posted on the court's website ("Notice of Availability of Court Reporting Services"). Local rule 1095 further states that "[c]ourt reporters will not be provided at court expense in misdemeanor and Department of Child Support Services calendar courtrooms, or in limited civil cases. Electronic recording equipment will be used for traffic court trials and in unlawful detainer proceedings."
The record on appeal indicates that defendant did not object to the unavailability of an official court reporter or insufficient notice of unavailability. Because there was no objection and the record is incomplete, this court is unable to determine whether defendant received proper notice of the unavailability of a court reporter. The absence in the register of actions of any mention of a statement indicating whether defendant requested an official court reporter is not dispositive of whether she received proper notice of unavailability of a court reporter. Furthermore, the limited record on appeal shows that defendant was aware, or should have been aware, before the trial began that no court reporter was available. The appellant's appendix includes a Riverside County superior court document entitled, "Notice of Availability of Court Reporter (California Rule of Court 2.956(b))," for the Palm Springs trial court, where plaintiff's case was tried on January 21, 2016.
It is unclear as to whether the Notice of Availability of Court Reporter applied on the day of the trial. The date in the lower left-hand corner states: "1/5/2016." The notice states that official court reporter services were provided in the civil courtrooms, PS1 and PS2. As to PS3, where the instant case was tried, the notice states that official court reporter services were only provided on Wednesdays and Fridays, for name change and civil harassment proceedings. The notice further states no reporter was available for limited civil collections cases, which were held on Thursdays. The instant case was designated a collection case, assigned to PS3, but was an unlimited civil case, because the amount in controversy exceeded the amount of a limited case. The notice also indicates reporting services using electronic equipment were available for unlawful detainer proceedings on Thursdays.
The minute order on January 21, 2016, for the trial in the instant case states that a court reporter was not present but the proceedings were electronically recorded. There is no indication from the record that plaintiff or defendant requested a court reporter, objected to there not being a court reporter, or requested a continuance of the trial for purposes of obtaining a court reporter. Defendant's initial notice of designating the record on appeal shows that defendant requested a record of the oral proceedings under rule 8.130. The notice further states that the requested transcript was for a short cause trial in department PS3, which was electronically recorded.
In response to defendant's notice of designating the record on appeal, the court clerk sent defendant a notice stating that "Per Rules of Court 8010[]- electronically recorded proceeding cannot be designated as an official record for Unlimited Civil Appeals. The electronically recorded proceedings are only available to be part of the record for Limited Appeals, Misdemeanor, Infractions and Limited Civil actions. Therefore, the appellant must submit Corrected AMENDED Designations . . . ." (Italics added.) Defendant filed another notice of designating the record on appeal, electing to proceed with her appeal without a record of the oral proceedings. Defendant made no attempt to provide an agreed or settled statement of the oral proceedings under rule 8.134 or 8.137, as permitted under rule 8.130, subdivision (h). She argues that an agreed statement was not an option because plaintiff would not have agreed to an accurate statement. However, this would not have precluded defendant from submitting a settled statement under rule 8.137.
Riverside County Superior Court Local rule 8010 states in relevant part:
"A. Record of Oral Proceedings.
1. The record of oral proceedings in limited civil, excluding limited unlawful detainer appeals as noted in subsection (A)(2), and misdemeanor appeals may be submitted by (a) statement on appeal, (b) electronic recording or transcript therefrom, or (c) reporter's transcript. In limited civil appeals, the appellant and respondent may also jointly prepare or stipulate to an agreed statement on appeal.
2. The official record of the oral proceedings in infraction trials and limited unlawful detainer trials shall be a transcription of the official electronic recording, and the parties shall be entitled to a free copy of that transcript, unless the appellant elects in the notice of appeal to proceed by statement on appeal. . . ." (Italics added.)
Rule 8.130(h) provides in relevant part:
"(1) If any portion of the designated proceedings cannot be transcribed, the superior court clerk must so notify the designating party in writing; the notice must show the date it was sent. The party may then substitute an agreed or settled statement for that portion of the designated proceedings by complying with either (A) or (B):
(A) Within 10 days after the notice is sent, the party may file in superior court, under rule 8.134, an agreed statement or a stipulation that the parties are attempting to agree on a statement. If the party files a stipulation, within 30 days thereafter the party must file the agreed statement, move to use a settled statement under rule 8.137, or proceed without such a statement; or
(B) Within 10 days after the notice is sent, the party may move in superior court to use a settled statement. If the court grants the motion, the statement must be served, filed, and settled as rule 8.137 provides, but the order granting the motion must fix the times for doing so.
(2) If the agreed or settled statement contains all the oral proceedings, it will substitute for the reporter' s transcript; if it contains a portion of the proceedings, it will be incorporated into that transcript."
By not objecting in the trial to the unavailability of an official court reporter or requesting a continuance of the trial for purposes of arranging for a certified shorthand reporter to serve as an official pro tempore reporter, defendant forfeited any objection to the proceedings not being recorded by an official court reporter. Generally, an appellant forfeits claims of error through inaction that prevents the trial court from avoiding or curing the error. (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117.) This general waiver or forfeiture rule is "grounded on principles of waiver and estoppel, and is a matter of judicial economy and fairness to opposing parties. [Citations.]" (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 629.) This court will not 1reverse erroneous rulings that could have been, but were not, challenged below. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.)
Defendant further argues she did not become aware that an electronic recording of the proceedings could not be included in the record on appeal until the trial court informed her of this in response to her initial notice of designating the record on appeal. At this point, the electronic recording may have no longer existed. Without citing to the record, defendant states in her appellant's opening brief that the deputy clerk in department PS3 informed her that "the electronic recording has since been purged from the Court's recording system as a mat[t]er of routine electronic file management." After learning she could not use the electronic recording, defendant, however, made no attempt to provide an alternative record of the oral trial proceedings, as permitted in rule 8.130. As a consequence, the record on appeal is inadequate, thereby precluding this court from properly reviewing the trial court's challenged findings and rulings.
Without a complete record of the trial, we cannot review any arguments, concessions, or information presented to the trial court. Under rule 8.163, "[t]he reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised. If the appeal proceeds without a reporter's transcript, this presumption applies only if the claimed error appears on the face of the record." Here, the claimed errors do not appear on the face of the limited record, primarily because defendant's statute of limitations claim and sufficiency of evidence challenge are triable issues of fact. Without a record of the oral proceedings and all evidence presented at the trial, this court cannot determine whether the statute of limitations had run.
Defendant's alternative contention on appeal that there was insufficient evidence of a written or oral agreement to repay plaintiff likewise cannot be reviewed by this court. During the trial, both plaintiff and defendant testified, according to the January 21, 2016, trial court minute order. Documents were also presented and reviewed by the trial court. The record on appeal does not provide a record of the oral testimony or include the trial exhibits. Therefore this court cannot determine whether substantial evidence supported the trial court's decision. "[T]he appellate court's review must be based on the whole record, not just the excerpts chosen by the appellant. '[I]n all cases, the determination whether there was substantial evidence to support a finding or judgment must be based on the whole record.'" (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581.)
Because this court begins with the presumption the judgment is correct (Osgood v. Landon, supra, 127 Cal.App.4th at p. 435), and defendant has not prepared a record that adequately establishes the trial court committed prejudicial error, defendant's claims on appeal must be resolved against her. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1296; Rancho Santa Fe Assn. v. Dolan-King, supra, 115 Cal.App.4th at p. 46.)
IV
MOTION FOR SANCTIONS
By motion filed with this court, plaintiff requests sanctions against defendant on the grounds (1) defendant failed to provide an adequate record on appeal and (2) defendant's appeal improperly seeks to relitigate the case "ab initio." Plaintiff argues defendant's appeal is frivolous and has caused plaintiff to incur unwarranted costs in preparing a defense to defendant's frivolous appeal. Plaintiff requests this court to order defendant to pay plaintiff $1,100 in sanctions, in addition to ordering sanctions payable to the court, to compensate it for its administrative costs in processing defendant's frivolous appeal.
Plaintiff seeks sanctions against defendant under Code of Civil Procedure section 907 and rule 8.276(a)(1) and (4). Code of Civil Procedure section 907 provides that, "[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." Rule 8.276(a)(1) and (4) states in relevant part: "On motion of a party or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay; [¶] . . . [¶] (4) Committing any other unreasonable violation of these rules."
In re Marriage of Flaherty (1982) 31 Cal.3d 637, states two standards for determining whether an appeal is frivolous, one objective and the other subjective. "The objective standard looks at the merits of the appeal from a reasonable person's perspective. 'The problem involved in determining whether the appeal is or is not frivolous is not whether [the attorney] acted in the honest belief he had grounds for appeal, but whether any reasonable person would agree that the point is totally and completely devoid of merit, and therefore frivolous.' [Citations.]" (Id. at p. 649.) "The subjective standard looks to the motives of the appellant and his or her counsel" to determine whether the appeal was taken to harass the respondent or delay the judgment or for some other improper purpose. (Ibid.) The objective and subjective standards may be used independently or, as is often the case, together, with one providing evidence of the other.
Plaintiff argues that the fact that defendant was in pro per during the trial and brought this appeal in pro per does not excuse her failure to provide this court with an adequate record and filing a frivolous appeal. We agree that defendant has committed various procedural errors in bringing the instant appeal, including failing to provide this court with an adequate record and urging this court to do what it cannot do, that is, review and reverse the trial court judgment based on this court improperly deciding factual issues based on an incomplete record.
Nevertheless, based on this court's review of the record as a whole, plaintiff's request for sanctions is denied, because we do not find defendant pursued her appeal in bad faith or with an improper motive warranting imposing sanctions. Defendant appears to have made a well-intentioned, concerted effort to assert her claims but, without an attorney, has made errors, which a layperson would be susceptible of making. Imposition of sanctions is discretionary, and under the particular circumstances in the instant case, this court concludes sanctions are not warranted.
V
DISPOSITION
The judgment is affirmed. Plaintiff's motion for sanctions is denied. Plaintiff is awarded her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. MILLER
J.