Slaughter v. State Farm General Insurance Co. CA2/2 ( 2021 )

Filed 6/23/21 Slaughter v. State Farm General Insurance Co. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
DJUANIQUE SLAUGHTER, B301910
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC700457)
v.
STATE FARM GENERAL
INSURANCE COMPANY,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory W. Alarcon, Judge. Affirmed.
Djuanique Slaughter, in pro. per., for Plaintiff and
Appellant.
Murchison & Cumming, Jean M. Daly and Christy Gargalis
for Defendant and Respondent.
******
Djuanique Slaughter (appellant) appeals from a judgment
of dismissal entered in this action against her homeowners
insurance carrier, State Farm General Insurance Company
(respondent).1 The matter was dismissed after appellant was
unprepared to proceed with trial on the day set for the trial to
commence.
Appellant, who appears before this court in propria
persona, makes no comprehensible legal or factual argument that
the trial court committed any error or that the judgment was
entered in error. Therefore, we affirm the judgment.
BACKGROUND
Appellant has failed to provide a sufficient factual
summary of the case. Her statement of facts is three sentences
long, and contains no citations to the record. Therefore, we rely
exclusively on the statement of facts and record citations
provided by respondent.
Commencement of lawsuit
In March 2017, there was a water leak in appellant’s house.
In April 2018, appellant filed a complaint against respondent.
On April 24, 2018, appellant filed a first amended complaint.2 In
June 2018, respondent filed an answer and demand for jury trial.
1 Appellant erroneously sued respondent as State Farm
Homeowners Insurance.
2 Neither the complaint, nor the first amended complaint, is
contained in the record on appeal. Respondent states that
appellant alleged six causes of action against respondent for
breach of contract, bad faith, breach of fiduciary duty, negligent
misrepresentation and declaratory relief, and sought to recover
punitive damages.
2
Respondent’s summary adjudication motion and
appellant’s appeal
In May 2019, respondent filed a motion for summary
judgment or summary adjudication (MSA).3 On September 9,
2019, the trial court filed a ruling denying respondent’s MSA as
to appellant’s causes of action 2, 3, 5, 6, and 7. The MSA was
granted as to appellant’s 4th cause of action for breach of
fiduciary duty and her request for punitive damages.
The court noted that respondent presented the following
evidence in support of its motion:
“[Respondent] inspected the incident one day
after it was reported and paid for some of the repair
costs three days after the incident was reported. (SS
6-9.) Over the next few weeks, [respondent] stayed in
touch with [appellant] regarding water mitigation
services and additional living expenses. (SS 10-29.)
About a month after the incident was reported,
[respondent] helped find [appellant] a place to live
during the repairs but [appellant] did not move in at
the time. (SS 30-32). [Respondent] asked for
[appellant’s] electricity bills to determine if those
costs will be repaid and disactivated [appellant’s]
insurance claim until [appellant] provides [sic] the
bill. (SS 33-36.) About seven months later,
[appellant] sent a water damage report to
[respondent], but [respondent] denied coverage those
damages [sic] because [appellant] failed to mitigate
by not diligently hiring a water mitigation service.
(SS 37-39.)”
3 Respondent’s motion for summary judgment or summary
adjudication is not contained in the record on appeal. Nor are
any supporting papers, or any response by appellant. The date of
the motion is ascertainable only from the case summary.
3
Based on these facts, the trial court found that respondent
had met its burden of showing that its conduct was not
oppressive, fraudulent, or malicious as a matter of law.
Appellant failed to present evidence raising a triable issue of
material fact as to her punitive damages claim.
On September 11, 2019, appellant filed a notice of appeal
from the September 9, 2019 order denying the MSA but granting
summary adjudication as to two issues. On August 17, 2020, this
court dismissed the appeal for lack of jurisdiction. (Slaughter v.
State Farm General Ins. Co. (Aug. 18, 2020, B300683).)
Trial and dismissal
On September 6, 2019, appellant appeared ex parte to
continue trial on the ground that the parties had agreed to
mediation. In her declaration in support of the ex parte
application, appellant noted that she had been unable to find an
attorney willing to represent her but that she had a prospective
attorney willing to represent her in the event that trial was
continued. On September 6, 2019, the trial court denied the ex
parte application to continue trial.
On October 7, 2019, the parties appeared for trial.
Appellant was representing herself. Appellant had not responded
to any of respondent’s pre-trial communications regarding trial
documents, joint documents, or any of the exhibit books.
Appellant advised the court that she wanted to mediate, and the
court sent the parties to a judge for a settlement conference.
The parties returned to the courtroom at 2:30 p.m. on the
same day and advised the court that the case did not settle.
Respondent waived its previously asserted right to a jury
trial. The trial court asked appellant for her first witness, but
she indicated she did not have a witness and was not ready to
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proceed. The trial court expressed its concern that appellant was
not ready for trial, did not have exhibits, had not subpoenaed
witnesses, and did not know who was going to testify. Due to
appellant’s lack of preparation, respondent moved to dismiss.
The court held a 30-minute recess to allow appellant to look
at respondent’s exhibits and discuss witnesses. Following the
recess, appellant again asked for a continuance. Respondent
opposed any further continuance. The trial court noted that
appellant had not been diligent. Appellant stated that she was
not prepared for trial and had been seeking an attorney. The
trial court advised appellant that it would not continue trial to
allow an attorney to consider whether to take her case.
On October 8, 2019, the parties convened for the second day
of trial. Appellant moved to dismiss the case without prejudice.
Respondent moved to dismiss the case with prejudice under Code
of Civil Procedure section 581 (section 581). The court agreed
that the trial had commenced and dismissed the case with
prejudice pursuant to section 581, subdivision (d).
Appellant’s second appeal
Appellant filed her appeal from the court’s October 8, 2019
order of dismissal on October 18, 2019.
DISCUSSION
I. Applicable law and standard of review
Section 581, subdivision (d), provides that with certain
exceptions, “the court shall dismiss the complaint, or any cause of
action asserted in it, in its entirety or as to any defendant, with
prejudice, when upon the trial and before the final submission of
the case, the plaintiff abandons it.”
5
Motions to dismiss under section 581 are generally
reviewed for abuse of discretion. (Gitmed v. General Motors Corp.
(1994) 26 Cal.App.4th 824, 827 [involving dismissal under § 581,
subd. (f)(2)].) Under this standard, we give “abundant deference”
to the trial court’s ruling. (People v. Jackson (2005) 128
Cal.App.4th 1009, 1018.) We examine the ruling and ask
whether it exceeds the bounds of reason or is arbitrary,
whimsical, or capricious. (Ibid.)
Motions for summary judgment, or summary adjudication,
are reviewed under the de novo standard. (Buss v. Superior
Court (1997) 16 Cal.4th 35, 60.)
To the extent that it is applicable, relief from waiver of the
right to a jury trial is reviewed for abuse of discretion. (Code Civ.
Proc., § 631; Gann v. Williams Brothers Realty, Inc. (1991) 231
Cal.App.3d 1698, 1704.)
II. Appellant has forfeited her arguments on appeal
Appellant’s opening brief, and the record she has provided,
do not provide sufficient information for a determination of a
legal or factual basis for this appeal.4
A judgment or order of the lower court is presumed correct.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).)
“‘All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown. This is not only a general principle of
appellate practice but an ingredient of the constitutional doctrine
of reversible error.’” (Ibid.) Thus, it is appellant’s obligation to
articulate claims of reversible error and “present argument and
authority on each point made.” (County of Sacramento v. Lackner
4 Appellant has not filed a reply brief in this appeal.
6
(1979) 97 Cal.App.3d 576, 591.) An appellant’s failure to meet
this burden may be considered an abandonment of the appeal.
(Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)
Appellant has failed to satisfy these obligations in this
appeal. Appellant’s statement of facts is completely devoid of
citations to the record, and her entire brief contains no citations
to the record with the exception of two references to the reporter’s
transcript.5 The record provided by appellant is also deficient.
Appellant has failed to include the complaints, the respondent’s
MSA, any opposition, or any supporting documents. It is
appellant’s burden to provide an adequate record on appeal.
(Claudio v. Regents of University of California (2005) 134
Cal.App.4th 224, 230.) Our review is “‘limited to issues which
have been adequately raised and briefed.’” (Ibid.) In this appeal,
there are no such issues.
Appellant’s decision to act as her own attorney on appeal
does not entitle her to any leniency as to the rules of practice and
procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-
985.)
Since the issues in appellant’s opening brief are not
properly presented or sufficiently developed to be cognizable, we
decline to consider them and treat them as waived. (People v.
5 Appellant cites the reporter’s transcript for the following
assertion: “The court granted defendant’s oral application for a
Nonjury Trial the day the jury trial was to commence (RT 15: 18-
20).” The only other citation to the record found in appellant’s
brief is the following: “On such basis, Slaughter has a statutory
right to jury trial (RT 22: 10-12).” There are no other citations to
the record in appellant’s brief.
7
Stanley (1995) 10 Cal.4th 764, 793; In re David L. (1991) 234
Cal.App.3d 1655, 1661.)
III. Appellant’s arguments fail
To the extent that we can ascertain appellant’s arguments
and the relevant facts, we briefly address these claims.
Denial of jury trial
Although appellant’s opening brief does not state a
comprehensible argument, she first attempts to articulate an
argument suggesting that the trial court erred in denying her a
jury trial. Appellant suggests that the trial court’s grant of
respondent’s waiver of jury trial on the day of trial was reversible
error.
The cited transcript shows that respondent waived a jury
trial on October 7, 2019, the day the court deemed the parties
ready for trial. The court noted that respondent paid the fees,
but confirmed “you’re waiving it?” Respondent’s counsel
responded, “Correct, we are, Your Honor.” The record shows that
appellant did not object nor make any request for a jury trial on
her own behalf. Appellant does not point to a citation to the
record showing that she ever requested a jury trial or paid the
requisite fees. Nor did she object when respondent waived jury
trial.
Issues not raised at the trial court level may not be raised
for the first time on appeal. (In re Aaron B. (1996) 46
Cal.App.4th 843, 846.) Appellant failed to make this argument to
the trial court below. Consequently, she may not raise it on
appeal, and we decline to discuss it further.
Dismissal with prejudice
Next, appellant attempts to argue that the trial court was
without jurisdiction to dismiss her case on the second day of trial.
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Appellant fails to provide citations to the record or any factual
explanation of the sequence of events leading up to the trial
court’s dismissal with prejudice of her action on the second day of
trial. She asserts, without reference to the record, that she
dismissed the case on October 8, 2019. The reporter’s transcript
indicates that both parties moved to dismiss the matter on the
second day of trial. The court stated: “So, plaintiff is moving to
dismiss the case, the defense wants it with prejudice, relying on
581, since the case has actually commenced to trial.” The court
then proceeded to dismiss the case with prejudice.
Appellant fails to cite any legal authority that, under the
circumstances of this case, where trial had already commenced
and both parties moved to dismiss, one with prejudice, one
without, the trial court erred in dismissing with prejudice.
Appellant cites inapplicable law suggesting that “where a
plaintiff has filed a voluntary dismissal of an action pursuant to
section 581, [former] subdivision 1, the court is without
jurisdiction to act further.” (Eddings v. White (1964) 229
Cal.App.2d 579, 583.) Eddings involved a situation where a
voluntary dismissal of the matter was filed five days before a
motion to dismiss the action for failure to prosecute was heard.
The Eddings court reversed the trial court’s judgment of
involuntary dismissal and sanctions due to undue delay. The two
orders were void because the action had previously been
voluntarily dismissed by the plaintiff. (Id. at pp. 582-583.) Roski
v. Superior Court (1971) 17 Cal.App.3d 841, also cited by
appellant, similarly involved an inapplicable situation. In Roski,
a nonparty attempted to file a complaint in intervention in an
action after the action had been dismissed with prejudice by the
parties. The trial court acted in excess of its jurisdiction in
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vacating the dismissal. (Id. at pp. 844-845.) Neither Eddings nor
Roski is pertinent to the present situation.
A trial court must dismiss an action with prejudice “when
upon the trial and before the final submission of the case, the
plaintiff abandons it.” (§ 581, subd. (d).) Generally, a trial court
has no discretion to decline to dismiss an action with prejudice
after the actual commencement of trial. (§ 581, subd. (e).) The
only exception to these rules is if “all affected parties to the trial
consent to dismissal without prejudice” or by a showing of “good
cause.” (§ 581, subd. (e).)
The trial court determined that trial had commenced, and
neither exception was applicable.
1. Commencement of trial
Section 581, subdivision (a)(6) states that “[a] trial shall be
deemed to actually commence at the beginning of the opening
statement or argument of any party or his or her counsel, or if
there is no opening statement, then at the time of the
administering of the oath or affirmation to the first witness, or
the introduction of any evidence.” Here, the parties appeared for
trial and respondent was ready to proceed. Respondent argued
that appellant “did not engage and has not engaged in any of the
exhibits or any of the motions required by local rules.”
Respondent indicated it was ready, but appellant had “not
responded to one request regarding the trial documents; one
request to joint documents, as required by local rule; any of the
exhibit books; even returning the original transcript.” When the
court invited the parties to engage in settlement negotiations,
appellant stated that she did not have her computer. The court
indicated that she did not need a computer to settle. The court
then inquired of appellant, “Do you have your stuff? Do you have
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receipts? You must have something, right? You brought
something to court, right, to mediate?” Appellant stated that she
did not have the necessary information.
When the court asked appellant who her first witness
would be, appellant responded, “Well, I don’t have them here
today . . . .” Appellant then requested another continuance. Due
to appellant’s lack of preparation, respondent moved to dismiss.
The court indicated to appellant, “. . . I’m hoping you’re going to
put on some evidence. It’s your case, You’ve had it for a long
time. You filed a number of motions. This is the day of trial.”
Respondent later engaged in more argument requesting
dismissal of the matter and objecting to any continuance beyond
that day. Appellant admitted that she was not prepared for trial.
The court gave appellant one evening to contact witnesses, tell
respondent what she intended to do in terms of exhibits, and
respond to respondent’s motions in limine. The proceedings were
adjourned to the following morning at 9:30. At that time,
respondent’s request for dismissal with prejudice was granted on
the ground that trial had previously commenced.
The trial court did not err in determining that trial had
commenced. The parties had appeared for trial and engaged in
extensive argument, which is one of the criteria for the
commencement of trial under section 581, subdivision (a)(6).
2. Exceptions to mandatory dismissal
Neither exception to mandatory dismissal existed here.
Appellant did not have good cause. She had not participated in
pretrial preparation. She had not prepared witnesses for trial,
did not have admissible exhibits, and had not produced any
expert witnesses for depositions. Appellant did not deny that she
11
was unprepared for trial on the day it commenced. Respondent
objected to any further continuance.
Under the circumstances, appellant has failed to meet her
burden of showing that the trial court erred in granting
respondent’s motion to dismiss the matter with prejudice under
section 581, subdivision (d).
Appellant has also failed to meet her burden of showing
that the trial court acted in excess of its jurisdiction in dismissing
the matter with prejudice. We have found no error in the trial
court’s determination that trial had commenced by the time
appellant filed her voluntary dismissal of the case on October 8,
2019. Appellant provides no citations to the record showing that
she made her motion to dismiss without prejudice prior to the
commencement of trial. Thus, the trial court had jurisdiction to
dismiss the matter with prejudice. (§ 581, subds. (d), (e).)
Summary adjudication as to breach of fiduciary
duty and punitive damages claims
Before this court may reverse a judgment, the appellant
must demonstrate prejudicial error. (Finney v. Gomez (2003) 111
Cal.App.4th 527, 550; Cal. Const., art. VI, § 13.) “An error is
prejudicial where there is a good probability, in the absence of the
error, the result to the appellant would have been more
favorable.” (Finney v. Gomez, supra, at p. 550.)
Appellant has failed to show how she could obtain a more
favorable result in the absence of the trial court’s grant of
summary adjudication as to one cause of action and her prayer
for punitive damages. Her case was dismissed with prejudice at
trial due to her abandonment of the case. Even if the court had
not summarily adjudicated these two causes of action, they would
have been dismissed at trial due to appellant’s complete lack of
12
preparation and abandonment of her case. Appellant fails to
address this issue on appeal, and therefore fails to meet her
burden of showing prejudicial error.
Further, appellant makes her entire argument on this issue
without a single citation to the record. She has not included the
MSA or opposition in the record on appeal. Under the
circumstances, appellant has failed to meet her burden of
showing error.
Appellant bears the burden of providing an adequate record
and her failure to do so requires that the issue be resolved
against her. (Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“the
burden is on an appellant to demonstrate, on the basis of the
record presented to the appellate court, that the trial court
committed an error that justifies reversal of the judgment”].)
Where, as here, the “‘“record is inadequate for meaningful review,
the appellant defaults and the decision of the trial court should
be affirmed.”’” (Ibid.) Therefore, the trial court’s order granting
summary adjudication of appellant’s fourth cause of action and
request for punitive damages is affirmed.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs
on appeal.
________________________, J.
CHAVEZ
We concur:
_______________________, P. J. ________________________, J.
LUI HOFFSTADT
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