Bisbee v. Pate

Filed 11/5/08 Bisbee v. Pate CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Jane D. Myers, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Manly & Stewart, John C. Manly, J. Michael Reck and Saul E. Wolf for Plaintiff and Appellant.

Palmieri, Tyler, Wiener, Wilhelm & Waldron, Don Fisher, Anish J. Banker and Elizabeth Valadez for Defendant and Respondent.

* * *

This appeal from an order setting aside a default and default judgment borders on the frivolous.[1] Respondent Pate is apparently one of several business associates involved in a deal to market certain previously unpublished Zane Grey manuscripts. According to the complaint (which was not included in the clerks transcript but which Pate put into the record in a successful motion to augment), Pate and her co-defendants allegedly failed to do their part to market the manuscripts (and certain other Zane Grey memorabilia), despite receiving over $20,400 to do so from appellant Bisbee.

As a matter of appellate procedure, appellant Bisbee has failed in two respects. First, he has failed to furnish a record adequate for review. (See Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 725, fn. 3 [It was of course the duty of Srithong, as the appellant, to furnish an adequate record for review.]; accord, Middlebrook v. Superior Court of Los Angeles County (1943) 21 Cal.2d 579, 579-580 [As the person interested in having the action of the inferior tribunal reviewed, it is as much the duty of the petitioner to furnish the record to be reviewed as it is the duty of an appellant to have a transcript before the court.]; see also Dobner v. Borrini (1970) 4 Cal.App.3d Supp. 1, 5 [It is the duty of appellant to furnish a record which demonstrates error. One which only shows that error may or may not have occurred is insufficient to support . . . a reversal.]; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  518, p. 562 [The appellant must affirmatively show error by an adequate record.].)

Specifically, Bisbee has not provided this court with the basic documents required for this court to review the trial courts set aside order: Neither Pates motion to set aside default and default judgment nor Bisbees opposition to it are included in the one volume clerks transcript. The clerks transcript is nothing but a clerks register of actions plus Bisbees notice designating record on appeal. The register of actions shows Pate filed a set aside motion January 30, 2008, and Bisbee filed his opposition on February 22, 2008, but neither document is mentioned in appellant Bisbees notice designating record. In short, appellant has supplied us with a clerks transcript that is worthless and has made no motion to augment the record to include the critical documents.[2]

Second, appellant Bisbees opening brief fails to provide any record references to support his version of the story. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellants contentions on appeal.) Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245-1247 recently canvassed authorities on this point and held that failing to comply with the requirement for record references (now in Cal. Rules of Court, rule 8.204(a)(1)(C)) means the appellant has waived any challenge based on material which required record references. We see no reason, particularly in an appeal from a party seeking to reinstate a default and default judgment, to use whatever discretion we have (cf. Cal. Rules of Court, rule 8.204(e)[3]) to overlook the rule. He who seeks to profit from his opponents procedural failures must lose by his own.

And, finally, the merits of appellants Bisbees appeal fail as well. Bisbees theory on appeal is this: The trial judge set aside the default and default judgment solely because the original complaint did not set out a specific amount of damages.[4] But, says Bisbee, the rule that a defendant must have notice of a specific amount of damages prior to default (e.g., Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428) does not apply outside of personal injury actions. (Schwab was a housing discrimination case brought by a prospective deaf tenant who used a signal dog.) Ergo, reasons Bisbee, the court had no authority at all to relieve the default and default judgment.

No. The complaint still had to specify the damages sought, which it didnt. As this court said in Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199 (Sole Energy I): Statements of damages are used only in personal injury and wrongful death cases, in which the plaintiff may not state the damages sought in the complaint. [Citation.] In all other cases, when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint. (Id. at p. 206. fn. 4.)

By the same token, the discretionary power of the trial courts to relieve defaults and default judgments under section 473 of the Code of Civil Procedure extends to surprise. (See Civ. Code,  473, subd. (b) [The court may . . . relieve a party . . . from a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.].) There is nothing in the statute to confine surprise to only personal injury cases.

Likewise, section 580, subdivision (a) of the Code of Civil Procedure provides that the relief granted to the plaintiff, if there is no answer cannot exceed that demanded in the complaint . . . . Again, nothing confines this basic assurance of due process to personal injury actions only. (See Sole Energy I, supra, 128 Cal.App.4th at p. 206, fn. 4 [in non-personal injury action, noting that failure of complaint to specify amount of damages sought could not be cured by service of statement of damages, and observing that if plaintiffs could remedy the failure of the complaint to be specific through service of a statement of damages after entry of default, the statement of damages would serve as the functional equivalent of an amendment to the complaint, which would open the defaults.]; see also Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1176-1177 (Murphy).) It follows that when a complaint does not clearly provide the defendant with notice of the defendants specific exposure, the trial court has authority to relieve that default and any ensuing judgment based on the surprise inherent in that lack of notice, even in a non-personal injury action.

To the degree that appellant Bisbee has any argument based on Pates timing of her motion to set aside, that argument has been waived by failing to supply this court with an adequate record. In a successful set aside motion, for example, the appellate court draws all reasonable inferences and conflicts in favor of the trial courts order. (E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We therefore assume that facts existed in Pates moving papers that obviate any objection to their timeliness. (E.g., Vermeulen v. Superior Court (1988) 204 Cal.App.3d 1192, 1198-1199 [It is appellants burden to demonstrate error by an adequate record (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, 418), and without an adequate record we must assume facts in support of the trial courts order.].)

We need only add that, as this court observed in Murphy, default judgments rendered in violation of section 580 are void (Murphy, supra, 134 Cal.App.4th at p. 1176), which would obviate any timing issue in any event, since void judgments may be attacked at any time (e.g., John Siebel Associates v. Keele (1986) 188 Cal.App.3d 560, 564, fn. 3 [Motions to vacate void judgments may be made at any time after judgment.].)

The order is thus affirmed. Respondent shall recover her costs on appeal.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

FYBEL, J.

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[1] The young associate sent by the appellants law firm did a valiant job at oral argument of trying to defend the indefensible case he had been assigned by his superiors. He acquitted himself well in the face of the panels questions concerning the inadequacy of the appellants brief and record. On the other hand, valiant is the opposite of the word appropriate for his superiors who were responsible for the inadequate brief and record, and who obviously sent the young attorney to defend a loser of a case.

[2] While respondents motion to augment the record was granted, that motion included three documents: a copy of the complaint, the trial courts tentative ruling, and the ensuing minute order. It did not cure appellants goof by including the motion itself and opposition to it.

[3] The failure to provide record references was one of the bases of a motion by Pate to strike the portions of the opening brief. That motion was denied.

[4] An attempt to cure the defect in the complaint and serve Pate with a statement of damages via publication was rejected by the trial court because the statement was served after Bisbee took Pates default.