Bilecky v. Pacific Exchange, Inc.

Filed 2/13/08 Bilecky v. Pacific Exchange, Inc. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Charles W. Stoll, Judge. Affirmed.

Paul Bilecky, in pro. per. for Plaintiff and Appellant.

Milbank, Tweed, Hadley & McCloy LLP and Jason B. Baim for Defendant and Respondent.

I. INTRODUCTION

Plaintiff, Paul Bilecky, appeals from an order denying his petition to set aside a judgment confirming an arbitration award. We affirm the order.

II. BACKGROUND

We limit our discussion of the procedural background to that shown by the record on appeal. The arbitration arose out of plaintiffs option trading account with E*Trade Securities, LLC (E*Trade). On or about September 1, 2005, three arbitrators issued an award in E*Trades favor. The arbitrators found plaintiffs trades had resulted in a negative position and his failure to meet a margin call caused an $11,491.82 debt. E*Trade apparently filed a petition to confirm the arbitration award. That petition has not been included in the record on appeal. Following an April 28, 2006 hearing, E*Trades petition was granted. On June 20, 2006, a judgment was entered confirming the arbitration award. On June 23, 2006, E*Trade served notice of entry of judgment on plaintiff. It appears plaintiff then filed a petition to set aside the judgment and a new trial request. There is no copy of the petition in the record on appeal. On July 28, 2006, the petition and the new trial request were denied.

On February 21, 2007, plaintiff filed a second petition to set aside the judgment. The petition named defendant, Pacific Exchange, Inc., as the respondent. On March 23, 2007, the second petition was denied. The trial court found the petition was untimely and defendant had no notice of the petition or of the hearing. The trial court also denied plaintiffs oral recusal request. On May 2, 2007, plaintiff filed a notice of appeal from the Judgment after court trial. We construe the notice of appeal as from the March 23, 2007 order denying plaintiffs petition to set aside the judgment. (Cal. Rules of Court, rule 8.100(a)(2); Sheet Metal Workers Internat. Assn. v. Rea (2007) 153 Cal.App.4th 1071, 1074, fn. 2; City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 818.)

III. DISCUSSION

This appeal is on a partial clerks transcript that omits pertinent documents filed in the trial court. (See Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46; Hernandez v. California Hosp. Med. Ctr. (2000) 78 Cal.App.4th 498, 502.) Plaintiffs brief on appeal contains no citations to the record. (See, e.g., Estate of Randall (1924) 194 Cal. 725, 728-729; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003-1004 & fn. 2; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.) Moreover, there is no reporters transcript of the March 23, 2007 hearing or of any other proceeding in this matter and no suitable substitute. It is plaintiffs burden to show error by an adequate record. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Plaintiffs failure to designate an adequate record on appeal warrants affirmance. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; In re Kathy P. (1979) 25 Cal.3d 91, 102.) In numerous situations, appellate courts have refused to reach the merits of an appellants claims because no reporters transcript of a pertinent proceeding or a suitable substitute was provided. (Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P., supra, 25 Cal.3d at p. 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1672 [transcript of judges ruling on an instruction request]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [monetary sanctions hearing]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporters transcript fails to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc. Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code of Civil Procedure section 1094.5 petition]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713-714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporters transcript or settled statement as to offers of proof]; Wetsel v. Garibaldi (1958) 159 Cal.App.2d 4, 10 [order confirming arbitration award].) We agree with defendant that plaintiff has failed to provide an adequate record and the order under review must therefore be affirmed.

Defendants sanctions request is denied. A party seeking sanctions on appeal must file a separate motion and a declaration. (Cal. Rule of Court, rule 8.276(b); Kajima Engineering & Const., Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402; Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1273, fn. 10.) Absent compliance with the procedural separate motion requirement, a sanctions request may be denied. (Kajima Engineering & Const., Inc. v. Pacific Bell, supra, 103 Cal.App.4th at p. 1402; Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn., supra, 92 Cal.App.4th at p. 1273, fn. 10.) Defendant has not filed a separate sanctions motion.

IV. DISPOSITION

The March 23, 2007 order denying the petition to set aside the June 20, 2006 judgment is affirmed. Defendant, Pacific Exchange, Inc., is to recover its costs on appeal from plaintiff, Paul Bilecky.

TURNER, P. J.

We concur:

ARMSTRONG, J. MOSK, J.

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