Schuldner v. InComm Fin. Services CA1/2 ( 2021 )

Filed 9/21/21 Schuldner v. InComm Fin. Services CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION TWO
STANLEY SCHULDNER,
Cross-Complainant and
Appellant, A160691
v. (San Francisco County
INCOMM FINANCIAL Super. Ct. No. 15-514368)
SERVICES, INC ET AL.,
Plaintiff and Respondents.
Appellant Stan Schuldner appeals from an order awarding respondents
InComm Financial Services, Inc. and The Bancorp Bank (usually collectively
respondents) costs in the amount of $6,590.17. The award was against the
background that the trial court had recognized that the costs were proper,
but originally granted Schuldner’s motion to tax because respondents had not
provided evidence demonstrating that the costs were in fact incurred.
Respondents sought reconsideration, and the court ruled in their favor, in a
thoughtful order explaining why.
We affirm that order, and thus bring to a close this aspect of the
litigation, a litigation that has now gone on for six years—and generated a
register of actions that contains over 750 entries. Enough is enough.
1
BACKGROUND
The General Setting
We have earlier described this case in our unpublished opinion filed on
January 16, 2018: Schuldner v. ITC Financial Licenses, Inc. (Jan. 16, 2018,
A150522) [nonpub. opn.].1 There, we rejected an earlier appeal by Schuldner
and affirmed a judgment in favor of Office Depot, an opinion from which we
occasionally quote, beginning with this description of the “Origins of This
Dispute:
“This case arises out of Schuldner’s scheme to generate credit card
rewards points by purchasing gift cards on credit and returning the cards for
cash. Pursuant to this scheme, Schuldner purchased ‘Do It Yourself Home
Improvement’ gift cards, each worth $500, in quantities of 10 to 20 at a time
from an Office Depot store in San Francisco. He did not, however, intend to
actually use the gift cards to purchase home improvement goods or services.
Instead, he would immediately mail them to the issuer, ITC Financial
Licenses, Inc. (ITC), for a cash refund of the purchase price. From October
2013 to January 2014, he purchased at least 130 gift cards totaling $65,000.
“ITC’s auditors eventually discovered Schuldner’s scheme and
determined he was violating the terms of the cardholder agreement
governing use of the cards. Relying on the terms of the agreement, ITC
declined to issue Schuldner any further refunds, leaving $32,499 in
outstanding gift cards. After notifying Schuldner of its decision not to issue
1 This background is based in significant part on our earlier opinion
and also on the register of actions in this case, as to both of which we take
judicial notice on our own motion. (Evid. Code, §§ 452, subd. (d), 459;
Smith v. Selma Community Hospital (2010) 188 Cal.App.4th 1, 45
[sua sponte judicial notice].)
2
cash refunds for the outstanding cards, ITC attempted to return the cards to
Schuldner, but he refused the delivery.
“The Arbitration
“Schuldner initiated an arbitration against ITC, seeking a cash refund
for the outstanding gift cards, plus interest and punitive damages. In a
decision dated June 12, 2015, the arbitrator ruled in ITC’s favor, finding that
Schuldner had purchased the cards in bad faith and his scheme violated the
terms and conditions of the cardholder agreement. According to the
arbitrator, Schuldner’s ‘sole intention was to generate credit card reward
points without spending any of his own money’ and he ‘candidly
acknowledged that he never had any intention of using the Home
Improvement gift cards for their intended purpose.’
“The arbitrator ordered ITC to return the full value of the outstanding
gift cards ($32,499), expressly stating that Schuldner was responsible for
accepting delivery. When ITC attempted to return the cards, however,
Schuldner refused to accept them.
“ITC’s Petition to Confirm the Arbitration Award and
Schuldner’s Cross-Complaint
“ITC filed a petition to confirm the arbitrator’s award. On September
14, 2015, the court granted the petition and confirmed the award. That same
day, Schuldner filed a document entitled ‘Respondent’s Petition to Vacate;
and Respondent’s Counter Claim—Civil Action.’
“In the cross-complaint, Schuldner alleged that since approximately
2012, ITC had published on its website a cardholder agreement that provided
the buyer could return the cards for a refund, as well as ‘notices and
advertisements that the gift cards it was selling could be used at various
merchants including at BenjaminMoore.com.’ He further alleged that in or
3
about June 2015 and on various other dates, he ‘went to BenjaminMoore.com
and noticed that it says it does not accept the gift cards.’ According to
Schuldner, he served ITC with a notice of violation of the Consumer Legal
Remedies Act (CLRA) arising out of its false advertising concerning where
the gift cards could be used, but ITC never responded. The cross-complaint
asserted four causes of action against ITC: (1) violation of the CLRA;
(2) breach of contract; (3) account stated; and (4) unjust enrichment.”
(Fns. omitted.)
Schuldner obtained leave to file a first amended cross-complaint
(FACC), which added The Bancorp Bank (Bancorp) and Office-Depot as cross-
defendants. The FACC purported to allege 12 causes of action against all
three cross-defendants: (1) violation of the CLRA; (2) breach of contract (for
failure to honor the cancellation clause in the cardmember agreement and
because the cards could not be used on the Benjamin Moore website and in
all stores); (3) account stated; (4) unjust enrichment; (5) false advertising in
violation of Business and Professions Code section 17200 (section 17200);
(6) fraud; (7) conversion; (8) violation of Penal Code section 496; (9) breach of
fiduciary duty; (10) negligent misrepresentation; (11) constructive trust; and
(12) civil conspiracy. The FACC also asserted class action allegations.
Respondents demurred to the FACC. As to the four claims based on
claimed misrepresentations, the court sustained the demurrer with leave to
amend. As to the remaining eight claims, the court sustained the demurrer
without leave to amend.
On June 28, 2016, Schuldner filed a second amended cross-complaint
(SACC). As we earlier described: “The SACC realleged the four
misrepresentation-based causes of action against all defendants: violation of
the CLRA (count 1); false advertising in violation of section 17200 (count 2);
4
fraud (count 3); and negligent misrepresentation (count 14). And it alleged
three new causes of action against all defendants: recission (count 4),
declaratory relief (count 5), and negligence (count 12).
“Additionally, the SACC reasserted against all cross-defendants the six
causes of action the court had dismissed with prejudice as to ITC and
Bancorp, that is breach of contract for misrepresenting where the cards could
be used (count 6), breach of contract for failure to give a refund after the
arbitration (count 8), account stated (count 9), unjust enrichment (count 10),
conversion (count 11), and violation of Penal Code section 496 (count 13). As
to Office Depot and Bancorp only, the SACC also alleged breach of contract
for failure to give a refund before the arbitration (count 7). [¶] . . . [¶]
“Office Depot demurred to the SACC, and the demurrer came on for
hearing on August 30, 2016. At the outset of the hearing, the trial court
observed that Schuldner had ‘ignored’ its previous rulings ‘in large order.’
Specifically, the court had granted leave to amend only the claims relying on
the misrepresentation theory, but Schuldner had reasserted the causes of
action the court had dismissed with prejudice. Concluding those claims still
failed as a matter of law, the court sustained Office Depot’s demurrer to those
claims without leave to amend.
“As to the remaining claims, the court concluded that Schuldner had
not alleged, and could not allege, a misrepresentation by Office Depot or his
reliance on a misrepresentation by Office Depot, informing Schuldner, ‘You
don’t have a claim against Office Depot here.’ The court thus sustained
Office Depot’s demurrer without leave to amend.
“On October 5, 2016, the court entered judgment for Office Depot.”
Schuldner appealed. And we affirmed. (Schuldner v. ITC Financial Licenses,
supra, A150522.)
5
Respondents had also demurred to the SACC, with the court hearing
their demurrer the same day as Office Depot’s. The court sustained their
demurrer to the misrepresentation-based causes of action. Schuldner
amended his complaint, respondents again demurred, and this time the court
overruled the demurrer. Thus, four causes of action remained as to
respondents: violation of the CLRA, false advertising in violation of section
17200, fraud, and negligent misrepresentation. So, while Office Depot was no
longer in the case, it continued against respondents.
The Proceedings Pertinent Here
Schuldner moved to amend his cross-complaint, and on January 4,
2018, the court granted the motion, instructing Schuldner to label the new
pleading the fifth amended cross-complaint. It was filed on January 12,
named respondents as cross-defendants, and alleged the four causes of action
noted above.2
On May 15, respondents filed a motion for summary judgment or, in
the alternative, summary adjudication. That same day, Schuldner filed his
own motion for summary judgment. The cross motions came on for hearing
on August 28, before the Honorable Harold Kahn, a most experienced
superior court judge. Judge Kahn permitted Schuldner to submit a
supplemental brief for the purposes of citing authority or statutes, which
brief was to be filed by September 4, on which date the motions would be
deemed submitted.
On October 17, Judge Kahn filed his order granting summary judgment
to respondents and denying Schuldner’s motion. And on December 18, he
entered judgment, holding that Schuldner “shall take nothing on his [fifth
The fifth amended cross-complaint also named as a cross-defendant
2
Reed Smith, the national law firm representing respondents.
6
amended] cross-complaint” and deemed respondents “the prevailing
parties . . . entitled to costs per [the] costs memorandum.”
On December 21, respondents filed a memorandum of costs, seeking
$7,437.51, primarily costs of deposition.
On March 11, 2019, Schuldner filed a motion to tax. Respondents filed
opposition, and the motion to tax came on for hearing before Judge Kahn on
May 31. Though no transcript is in the record for that hearing—and from all
indications no formal order was ever filed—it appears that Judge Kahn
indicated from the bench that $6,590.17 in costs were in fact recoverable, but
he would nevertheless tax them, on the basis that respondents had not
attached a declaration with supporting documentation evidencing that the
costs had actually been incurred.
On June 10, respondents filed a motion for reconsideration which
among other things cited to Code of Civil Procedure section 473,
subdivision (b). And in support of the motion respondents submitted new
evidence in the form of receipts for the claimed costs. The motion also
described why respondents had not presented the evidence earlier, explaining
in its introduction that Schuldner’s motion to tax was “almost entirely based
on two arguments: (i) whether Mr. Schuldner was a prevailing party under
the catalyst theory; and (ii) whether the costs incurred by [respondents] were
necessary. Accordingly, counsel for [respondents] inadvertently
misinterpreted a vague sentence on the fourth page of the motion as another
challenge to whether the costs were recoverable, not as a challenge to the
amount of the charges. Because counsel for [respondents] did not believe that
Mr. Schuldner had challenged the amount of the charges, they did not attach
supporting documentation for the charges to their opposition. . . . However,
as Mr. Schuldner acknowledged in his reply in support of his motion, receipts
7
are not required as part of [respondents’] memorandum of costs, only in an
opposition to a motion to tax costs, and thus such a declaration would in no
way be untimely under the statute.” And respondents’ introduction
concluded, “[Respondents] should not be prejudiced by their counsel’s
excusable failure to attach receipts to their opposition to Mr. Schuldner’s
motion because of their misinterpretation of a single sentence in Mr.
Schuldner’s vague motion.”
On June 21, Schuldner filed opposition. Respondents filed a reply, and
the motion came on for hearing on July 30. On October 10, Judge Kahn filed
his order, holding for respondents. It was a thoughtful order indeed,
providing in its substantive entirety as follows:
“On May 31, 2019, at the hearing on respondent and cross-complainant
Stan Schuldner’s3 motion to tax the costs claimed by [respondents] ITC
Financial Licenses, Inc. and The Bancorp, Inc. I orally granted Mr.
Schuldner’s motion and taxed all costs claimed by cross-defendants due to
their failure to provide any receipts for their claimed costs. As far as I can
tell, that oral order was never memorialized in a written order.
“On July 30, 2019, a hearing was held on [respondents’] motion for
reconsideration of my May 31 order taxing all of their costs. At that hearing
Mr. Schuldner represented himself and Matthew Wrenshall appeared (via
CourtCall) for [respondents]. At the conclusion of the hearing I took the
motion under submission so that I could more fully consider the parties’
arguments. Having now reviewed all of the papers filed by the parties on Mr.
Schuldner’s motion to tax costs and [respondents’] motion for reconsideration,
my notes of the two hearings, and done my own independent research, I issue
3The order is edited by us to correctly spell Schuldner’s name, which
was inadvertently misspelled in the order.
8
this order granting [respondents’] motion for reconsideration and awarding
them $6,590.17 in costs.
“I exercise my discretion under both [Code of Civil Procedure section]
1008 and . . . my inherent authority per Le Francois v. Goel (2005) 35 Cal.4th
1094 to reconsider the May 31 order. [Respondents’] failure to present
receipts for their claimed costs . . . has now been remedied and the interests
of justice would not be served by now precluding them from receiving the
costs that they would otherwise have received had it not been for their now
remediated error.
“The December 21, 2018 memorandum of costs filed by [respondents]
claims filing and motion fees of $1,620.70, deposition costs of $5,816.51 and
total costs of $7,437.21, which, absent a timely filed amended memorandum,
are the maximum amounts of costs recoverable by [respondents.] There was
no timely filed amended memorandum. Assuming without deciding that the
change in the website language constitutes recovery ‘other than monetary
relief’ by Mr. Schuldner within the meaning on [Code of Civil Procedure
section] 1032[, subdivision] (a)(4), I exercise my discretion per that subsection
to determine that [respondents] are the prevailing parties for purposes of
recovery of costs because the primary relief sought by Mr. Schuldner was
monetary, not injunctive.
“[Respondents] have shown that they reasonably and necessarily
incurred at least $1,620.70 in filing and motion fees and $4,969.47 in
deposition costs for a total of $6,590.17. I reject Mr. Schuldner’s arguments
that [respondents] have not provided sufficient receipts or other
documentation supporting these amounts. The court’s register of actions
shows that [respondents] incurred far more than $1,620.70 in recoverable
costs and the documentation provided by [respondents] on this motion are
9
further corroboration. At no time have I stated or implied that the register of
actions was not sufficient to support [respondents’] claimed filing and motion
fees. I specifically find that $4,969.47 in deposition costs were reasonably
and necessarily incurred and are allowable.
“I have not considered the new lawsuit filed by Mr. Schuldner nor did I
find either relevant or persuasive Mr. Schuldner’s speculation that
[respondents] do not intend to make any efforts to enforce an award of costs.
“For the reasons set forth above, [respondents] are entitled to a costs
award of $6,590.17.”
Following that, Schuldner filed a series of motions attempting to have
Judge Kahn change his ruling, including motions for new trial and for
reconsideration. All of his motions were rejected. Schuldner also filed
challenges to Judge Kahn, including a preemptory challenge and a challenge
for cause. Both were unsuccessful. Finally, on July 13, 2020, Schuldner filed
a notice of appeal, purporting to appeal from three separate orders, those
dated June 23, 2020, March 13, 2020, and October 10, 2019. However, as
Schuldner’s brief makes clear, “The sole issue here is whether a post
judgment motion for reconsideration on costs is allowed, when no new
facts/law are alleged.”
DISCUSSION
Introduction
Schuldner has filed an opening brief that is all of seven-pages long.
The first three pages include six sections entitled “Introduction” (four-lines);
“Jurisdictional Issues” (two-lines); “Nature of Appeal” (one-line); “Procedural
History” (one and one-half pages); “Facts” (two-lines(!)); and “Standard of
Review” (two-lines, saying “Judge Kahn treats the issue as one of law to be
decided de novo.”)
10
There follows a section “VII. Argument” that has two arguments, “A”
and “B.” They are as follows: “A. Judge Kahn got it backwards. The smaller
the issue, the less opportunity a party should have for reconsideration.” And
“B. The arbitrator’s characterization of the underlying facts is disputed, and
not relevant to this appeal. Since this characterization was never an issue in
the litigation, appellant never had an opportunity to present evidence to
dispute it.”
The brief is manifestly insufficient. And Schuldner’s appeal has no
merit, for reasons both procedural and substantive.
The Standard of Review
As noted, respondents moved for reconsideration in papers that cited
among other things to Code of Civil Procedure section 473, subdivision (b),
which provides for relief from orders entered based on “mistake,
inadvertence, surprise, or excusable neglect.” Judge Kahn granted
reconsideration.
Orders involving reconsideration are reviewed for abuse of discretion.
(Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027.)
So, too, are orders granting relief under the discretionary provisions of Code
of Civil Procedure section 473, subdivision (b). (Shamblin v. Brattain (1988)
44 Cal.3d 474, 478.) Thus, to prevail on his appeal, Schuldner must
demonstrate such abuse. He has not. Indeed, he cannot even urge abuse of
discretion here, as he has not provided an adequate record—a transcript of
the hearing.
Snell v. Superior Court (1984) 158 Cal.App.3d 44, 49 is dispositive:
“ ‘In the absence of a transcript the reviewing court will have no way of
knowing . . . what grounds were advanced, what arguments were made and
what facts may have been admitted, mutually assumed or judicially noticed
11
at the hearing. In such a case, no abuse of discretion can be found except on
the basis of speculation.’ ” As another Court of Appeal put it, on “issues . . .
involving the abuse of discretion standard of review, a reporter’s transcript or
an agreed or settled statement of the proceedings is indispensable.” (Hood v.
Gonzales (2019) 43 Cal.App.5th 57, 79–80.) This rule is devastating to
Schuldner’s appeal here. Likewise, the principles of appellate review.
The Principles of Appellate Review
The Supreme Court has recently collected the applicable principles in
Jameson v. Desta (2018) 5 Cal.5th 594, 608–609: “[I]t is a fundamental
principle of appellate procedure that a trial court judgment is ordinarily
presumed to be correct and 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. (See, e.g.,
Denham v. Superior Court (1970) 2 Cal.3d 557, 564 . . . ; see generally 9
Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409 [citing cases].)
‘This is not only a general principle of appellate practice but an ingredient of
the constitutional doctrine of reversible error.’ (9 Witkin, supra, § 355, at p.
409, see Cal. Const., art. VI, § 13.) ‘In the absence of a contrary showing in
the record, all presumptions in favor of the trial court’s action will be made
by the appellate court. “[I]f any matters could have been presented to the
court below which would have authorized the order complained of, it will be
presumed that such matters were presented.” ’ (Bennett v. McCall (1993) 19
Cal.App.4th 122, 127.)”
Not only is it Schuldner’s burden to demonstrate error (Denham v.
Superior Court, supra, 2 Cal.3d at p. 564; see People v. Sanghera (2006)
139 Cal.App.4th 1567, 1573), to do so he must “present meaningful legal
analysis supported by citations to authority and citations to facts in the
12
record that support the claim of error. . . . [C]onclusory claims of error will
fail.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) This, Schuldner has not
done.
Beyond all that, superimposed on all these rules is the principle noted
in F.P. v. Monier (2017) 3 Cal.5th 1099, 1108, that even if a court has
committed error—which Schuldner has not shown—the appealed-from order
must be affirmed unless it has resulted in a miscarriage of justice. (See Cal.
Const., art VI, § 13.) There is no miscarriage of justice here.
Judge Kahn’s Ruling Was Right
Respondents’ motion for reconsideration was filed within 10 days of
Judge Kahn’s oral announcement that he would not allow costs; it was made
before the same judge who issued the earlier ruling; and it explained why the
material had not been produced at an earlier time. (Mink v. Superior Court
(1992) 2 Cal.App.4th 1338, 1342.) In short, the motion met the requirements
for reconsideration under Code of Civil Procedure section 1008.
But even if it did not, Judge Kahn’s ruling will be upheld under the
rule set forth by our Division Four colleagues in In re Marriage of Barthold
(2008) 158 Cal.App.4th 1301, 1303–1304 (Barthold), which began its opinion
with this “introduction”: “The California Supreme Court held, in Le Francois
v. Goel[, supra,] 35 Cal.4th 1094 . . . (Le Francois), that even when Code of
Civil Procedure section 1008 (section 1008) precludes a party from moving for
reconsideration, a trial court has inherent authority to correct an erroneous
ruling on its own motion. In this marital dissolution case, the trial judge
denied a postjudgment motion filed by the wife. She promptly filed a motion
for reconsideration. The trial judge determined that the motion did not in
fact meet the requirements of section 1008, but also that his earlier ruling
had been erroneous. Accordingly, the judge reversed himself, and granted
13
the relief sought by the wife. [¶] We conclude that the trial court’s inherent
authority to correct its errors applies even when the trial court was prompted
to reconsider its prior ruling by a motion filed in violation of section 1008.
Because that is what occurred in the present case, we affirm the trial court’s
order.”
The facts in Barthold involved a motion by Kay seeking a
determination she was entitled to a “listing bonus” under the terms of a
marital settlement agreement with her ex-husband Aubin, basing her claim
on the advice she received from the real estate broker. The trial court denied
her motion because it did not support that the broker suggested the delay.
Kay filed a motion for reconsideration, which included a declaration from the
broker. This is how the Court of Appeal described Aubin’s opposition and the
trial court’s holding:
“In his opposition to Kay’s motion, Aubin argued that Kay had
presented no new or different facts, and that to the extent she had presented
new evidence, she had provided no satisfactory explanation for her failure to
present it with the original motion. Aubin also submitted a declaration
reiterating that the broker never suggested or even mentioned to him that
the listing date should be postponed. He also contended that Kay should be
sanctioned for filing the motion under [Code of Civil Procedure] section 1008,
subdivision (d).
“In his order filed September 6, 2006, the trial judge stated at the
outset that ‘[w]hen I ruled on this case in July[,] I completely missed the most
important point. At that time the parties were not seriously contesting
whether the real estate broker had asked to have the listing delayed. Now
that I realize the true situation, [Kay’s] somewhat “oblique” statement in her
declaration does make sense.’ He went on to say that he had reread Aubin’s
14
opposition to the original motion, and that the thrust of Aubin’s argument at
that time was not that the broker had failed to make the recommendation,
but that Kay had not sought a court order authorizing the delay.
“The remaining body of the trial judge’s order of September 6, 2006,
reads as follows: ‘Although a party who makes a motion under [s]ection 1008
must strictly follow the requirements of that section in bringing the motion,
the court has inherent authority to correct a mistaken ruling if this is done
before the ruling becomes final. So, if the court clearly made a mistake in
interpreting what the parties were contending at an earlier hearing, the
injustice can be fixed. See Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th
1148, 1156 . . . . [¶] I find that there never was a legitimate dispute about
whether . . . the broker[] had recommended that the listing be delayed. I do
not buy the suggestion made at the last hearing that there really was a
genuine dispute about this. [¶] As to the issue that the parties were actually
arguing at the July hearing—whether [Kay] had to apply to the court for an
order extending the listing or else the delay would not be excuse[d]—my
answer is no. She did not have to go to court to be excused from the delay as
long as the broker had recommended it.’
“The court concluded by ordering that: ‘The motion for reconsideration
is granted. [Kay] is entitled to the [listing] bonus. . . .’ ” (Barthold, supra,
158 Cal.App.4th at pp. 1306–1307.)
Reaching that decision, our colleagues observed among other things
that “although the trial court’s reconsideration of its earlier order was not the
result of ‘an unprovoked flash of understanding’ on the part of the judge, it
clearly was intended to correct an order that the court had come to believe
was erroneous. [¶] . . . [¶] . . . [I]t is clear that a party’s filing of a motion for
reconsideration in violation of the reconsideration statutes does not erect a
15
permanent, insurmountable barrier to reconsideration by the trial court on
its own motion.” (Barthold, supra, 158 Cal.App.4th at pp. 1308–1309.)
DISPOSITION
For each, and all, of the reasons set forth above, Schuldner has failed to
show that Judge Kahn committed error, let alone that there was a
miscarriage of justice. To the contrary, Judge Kahn correctly held that the
modest amount of costs awarded respondents after the many years of
litigating with Schuldner was fair, just, and supported by the evidence. The
order of October 10, 2019 is affirmed. Respondents shall recover their costs
on appeal.
16
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
Schuldner v. InComm Financial Services, Inc. (A160691)
17