Canepa Design v. Thielman















Filed 7/13/12 Canepa Design v. Thielman CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



SIXTH
APPELLATE DISTRICT




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CANEPA DESIGN, Plaintiff and Respondent, v. VERNON D. THIELMAN, Defendant and Appellant.

H037121 (Santa Cruz County Super. Ct. No. CV164836)

Defendant Vernon D.
Thielman appeals from a judgment awarding plaintiff Canepa Design the balance
due on a promissory note. Defendant argues that the trial court erred
in refusing to continue the trial date because plaintiff’s discovery responses
were not delivered in time for defendant to prepare for trial. We conclude that the record is inadequate to
show error.

I.
Factual and Procedural Background

Plaintiff filed a
complaint for breach of promissory note
and common counts on August 10, 2009. The complaint attached a promissory note
dated July 18, 2003. According to the note, plaintiff loaned
defendant $15,000 three years earlier, in March 2000, at 10 percent
interest. The note called for defendant
to make payments in installments of $500 over 36 months, making the final
payment due August 1, 2006.

Trial was to the court
on April 20, 2011. The trial court found that defendant had
signed the note and that the note evidenced an earlier oral loan
agreement. Although enforcement of the
oral agreement “may have become barred by the statute of limitations after two
years, defendant’s act in signing the written note was supported by adequate
moral consideration and operated as a waiver of the statute.” The statute began to run when the loan was
due, August 1, 2006, and
since the complaint was filed within four years of that date it was
timely. (Code Civ. Proc., § 337.) The court further found that defendant, who
had been employed by plaintiff, had not carried his burden to prove that the
parties had agreed to apply his overtime pay in satisfaction of the outstanding
balance or that the claim was barred by laches or a failure of
consideration. The court found that
defendant had paid only $5,000 toward the debt and that principal plus interest
still owing was $26,750. Defendant, who
has appeared in propria persona throughout this litigation, filed a timely
appeal from judgment.

II.
Discussion

Defendant’s only argument on appeal
is that the trial court erred in failing to continue the April 20, 2011 trial. We review the argument under settled
rules. The cardinal rule is that a
judgment or order of the trial court is presumed correct and prejudicial error
must be affirmatively shown. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) If the record is inadequate for meaningful
review, the appellant defaults and the decision of the trial court is
affirmed. (Gee v. American Realty
& Construction, Inc.
(2002) 99 Cal.App.4th 1412, 1416.) The
usual rule is that the record before us must contain only that which was before
the trial court. (Doers v. Golden
Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; see Cal. Rules of
Court, rules 8.122, 8.124(g).) Matters
not presented to the trial court are not a proper part of the record on appeal
and will not be considered by an appellate court. (People v. Chi Ko Wong (1976) 18
Cal.3d 698, 711, overruled on other grounds in People v. Green (1980) 27
Cal.3d 1, 33-34.)

Defendant has
proceeded by way of an appellant’s appendix as allowed by California Rules of
Court, rule 8.124. We granted
plaintiff’s motion to strike a significant portion of the 64 page appendix on
grounds the material was not presented to the trial court. Accordingly, the record consists of little
more than the complaint, the answer, defendant’s ex parte request to continue
the February 18, 2011 trial date (which was granted), and exhibits relating to
payments on the debt. There is no
reporter’s transcript or settled statement to shed light on what transpired
during the trial. (Cal. Rules of Court,
rules 8.130, 8.137.) The only indication
that defendant asked for another continuance is defendant’s statement to that
effect in his brief. The record does not
reveal the alleged error. Accordingly,
we must affirm.

III.
Disposition

The judgment is
affirmed.









________________________________

Premo,
Acting P.J.







WE CONCUR:









Mihara, J.











Duffy,
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