Hao v.
Filed 9/23/13 Hao v. Millbrae Paradise CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
WEI HAO et al.,
Plaintiffs and Appellants,
v.
MILLBRAE
PARADISE etc. et al.,
Defendants and Respondents.
B242085
(Los Angeles
County
Super. Ct.
No. GC048146)
APPEAL from
orders of the Superior Court
of
County, David G. Milton, Judge. Affirmed.
Pierry Law
Firm, Joseph P. Pierry; and Law Offices of Shin P. Yang and Shin P. Yang, for
Plaintiffs and Appellants.
Tron &
Tron, Lanny M. Tron and Terry L. Tron, for Defendants and Respondents.
>
Defendants,
Millbrae Paradise LLC and L.F. George Properties Corporation, successfully
secured relief from entry of default and a default judgment. Plaintiffs, Wei Hao and Faxue Gong, appeal,
arguing the trial court improperly granted defendants’ motion for relief on an
to present an adequate record for review.
We agree.
There are
two relevant hearings. On June 29, 2012, an ex parte hearing
was held on defendant’s motion to set aside the default and default
judgment. And on July 9, 2012, an ex parte hearing was conducted on
plaintiffs’ reconsideration motion. No
court reporter was present at either proceeding. No hearing was held on the default prove up
request. The judgment was based upon
declarations. Plaintiffs have made no
effort to secure a settled or agreed statement in connection with what occurred
at the June 29 and July 9, 2012 hearings.
The parties were advised the absence of a reporter’s transcript or a
suitable substitute, such as a settled statement, was a problem. In an order filed November 1, 2012, we directed the parties to
address the issue of the adequacy of the record on appeal.
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. (
Cal.3d 257, 273-274 [transfer order]; Maria
P. v. Riles (1987) 43 Cal.3d 1281, 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];
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 judge’s
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];
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];
Cal.App.3d 1528, 1532 [reporter’s 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 Civ. Proc., § 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, 711-712 [demurrer hearing];
Cal.App.2d 70, 71-73 [transcript of argument to the jury];
Cal.App.2d 460, 462 [failure to secure reporter’s transcript or settled
statement as to offers of proof]; Wetsel
v. Garibaldi (1958) 159 Cal.App.2d 4, 10 [order confirming arbitration
award].) As to any evidentiary matters,
in the absence of a transcript or a suitable substitute, the ruling is presumed
to be correct. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324;
147, 154.)
In
addition, plaintiffs have failed to provide missing documents. For example, plaintiffs have failed to
include proofs of service of the summons and complaint on L.F. George Properties
Corporation. Although not dispositive,
this is a further example of the inadequacy of the record to assess the trial
court’s exercise of discretion. (
Cal.App.4th 28, 46; Hernandez v.
498, 502.)
Without the
settled statements, we cannot assess what additional arguments may have been
presented by the parties at the June 29 and July 9, 2012 hearings.
We cannot evaluate whether plaintiffs were prejudiced because both
hearings were conducted on an ex parte basis, as plaintiffs assert. All of plaintiffs’ jurisdictional arguments
are premised on the ex parte nature of the June 29, 2012 hearing.
(Plaintiffs make no such argument as to their July 9, 2012 reconsideration motion.) In terms of the complaint and default entry
request, defendants’ principals’ declarations denied knowledge of those
documents existence until after the judgment lien was recorded. These are issues involving matters of
discretion and fact finding. We cannot
assess the reasoning of the trial court in ruling as it did. Thus, without the settled statements, the
orders under review must be affirmed.
The orders
granting relief from default and the default judgment are affirmed. Defendants, Millbrae Paradise LLC and L.F.
George Properties Corporation, are awarded their appeal costs from plaintiffs,
Wei Hao and Faxue Gong.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
I concur:
KRIEGLER,
J.
>
Wei Hao et al. v. Millbrae
Paradise etc. et al.
B242085
MOSK, J., Concurring
I believe
under the circumstances of this case, the trial court properly granted
defendant’s motion for relief from entry of a default and default judgment and
properly denied the motion for reconsideration.
Plaintiff had the opportunity to and did appear at the relevant
proceedings.
MOSK,
J.
