Sierra v. Kremer CA1/5 ( 2015 )

Filed 4/20/15 Sierra v. Kremer CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
REGULO SIERRA,
Plaintiff, Cross-defendant and
Appellant, A140807
v. (San Francisco City and County
STEVEN KREMER et al., Super. Ct. No. CGC-11-514122)
Defendants, Cross-complainants
and Respondents.
Appellant Regulo Sierra sued respondents Steven Kremer, Sandra Kremer and
Katalina Dresner (collectively Respondents), for “Elderly Abuse, Fraud.” Respondents
cross-complained against Sierra for breach of a settlement agreement and general release
(Settlement) executed by Sierra in earlier litigation. The trial court sustained a demurrer
to Sierra’s second amended complaint without leave to amend, denied his motion for
reconsideration, and dismissed the complaint. Sierra failed to appear for trial on the
cross-complaint, and an uncontested court trial was held. Judgment was awarded to
Respondents. Sierra challenges the judgment’s validity and contends the trial court
erroneously denied his informal request for a continuance. We affirm.
I. BACKGROUND
We summarize the convoluted factual history of this litigation for context and in
an attempt to identify what is at issue. We do so with some difficulty because Sierra cites
to virtually nothing in the record other than his own trial court pleadings (without
1
identifying where in the record they may be located), and he attempts to present questions
that either are not appealable or were never raised below.
Sierra’s Pleadings
The genesis of the present litigation appears to be a June 2008 complaint filed by
Sierra (case No. CGC-08-476613)1 against Respondents and against Steven Kremer as
the administrator of the estate of Vivian Barrett. The gist of the complaint was that Sierra
had served as a personal and financial assistant to Barrett, and that she had promised to
leave him at least $2 million in municipal bonds upon her death in consideration of his
services.2 In December 2008, Sierra, represented by counsel, entered into the Settlement
resolving the litigation in consideration of payment of $58,000 “in full and final
satisfaction and discharge of all of Sierra’s claims, known or unknown . . . .” The
Settlement included a release of Respondents “from and against any and all claims,
causes of action, liabilities, duties, suits, fees, costs and damages which . . . were set forth
in or could have been set forth” in the complaint and creditor’s claim. The consideration
was paid, and the complaint was dismissed with prejudice.
Notwithstanding the Settlement, Sierra filed a pro se action in March 2010 (case
No. CGC-10-497564).3 That complaint appeared to be a duplicate of Sierra’s original
dismissed complaint, with his name substituted as counsel. Respondents’ demurrer was
sustained without leave to amend in July 2010, on grounds of res judicata.
1
All referenced trial court cases were filed in the Superior Court of the City and
County of San Francisco.
2
Sierra also filed a creditor’s claim against Barrett’s estate seeking $200,000 as
the reasonable value of services provided to Barrett during her lifetime.
3
Respondents cite in their brief several attempts by Sierra (either directly or
through others) to assert claims against Barrett’s estate or against Steven Kremer as
administrator following the Settlement. They also cite to documents included in requests
for judicial notice in the trial court, but no record evidence is provided that the court ever
granted those requests or that the court otherwise considered the documents. Thus, we
only take judicial notice of relevant documents within the clerk’s transcript which have
been file stamped, indicating that they are official records of the superior court. (Evid.
Code, § 452, subd. (d)(1).)
2
The pro se complaint underlying this appeal was filed in September 2011 (case
No. CGC-11-514122). It is captioned “ELDERLY ABUSE, FRAUD Re: estate OF
Vivian Barrett, Interference with Business and personal Affairs for financial Gain” and
alleges, inter alia, that Respondents breached promises made to him by Barrett to deliver
municipal bonds and personal property upon her death, and thereby interfered with his
business and financial affairs. The following November, the trial court (Hon. Harold
Kahn) sustained Respondents’ demurrer, with leave to amend “if he can do so in good
faith, to allege claims that are not time-barred and that were not and could not have been
a part of the prior lawsuits.” About 10 days later, Sierra filed a “First Amended
Complaint for Damages to Elderly Person Disable [sic], and Intentional Infliction of
Emotional Distress.” This pleading alleged, without explanation, that Sierra’s complaint
was not time-barred and that he suffered pain and mental anguish due to the “small
amount” of the Settlement. Respondents again demurred and filed a motion to strike the
pleading. In February 2012, Judge Kahn sustained the demurrer, with 30 days leave to
amend, finding that Sierra failed to plead any facts to show that his claims were not time-
barred and were not and could not have been part of the prior lawsuits.
Sierra filed a second amended complaint in March 2012, seeking damages for
fraud, elder abuse, “unconscionability,” intentional infliction of emotional distress, and
“accounting.” Respondents again demurred. Judge Kahn, after hearing the following
May, sustained the demurrer without leave to amend, finding that Sierra “ha[d] not
alleged, nor does it appear that he can allege, ultimate facts showing that the five causes
of action in the Second Amended Complaint are not barred by the applicable statues of
limitations or by res judicata.”
Sierra filed a motion for reconsideration. His motion included a challenge to
Judge Kahn under Code of Civil Procedure section 170.6, and also sought to add Judge
Kahn as a defendant in the action. The matter was referred to Judge Curtis Karnow for
hearing on the motions. Sierra did not appear at a hearing on July 26, 2012, to contest
tentative rulings by Judge Karnow denying the motions; however, Patricia Hewlett, a
nonattorney, and Michael Murawski, an unlicensed attorney, attempted to appear on
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Sierra’s behalf. Hewlett asked to postpone the hearing because Sierra was “very sick.”
The court declined to continue the matter and entered orders consistent with the tentative
ruling.4 The court found that Sierra failed to present any new law or facts upon which to
base a reconsideration motion, and that the motion did not comply with Code of Civil
Procedure section 1008.5 An order was entered dismissing Sierra’s second amended
complaint on that date.
Following the dismissal, Sierra contended that Raymond Burke, an attorney
specially appearing for Respondents at the July 26, 2012 hearing had orally agreed to a
settlement with Sierra for $475,000. Sierra filed a motion to enforce settlement. Judge
Karnow denied the motion in September, finding that the requirements of Code of Civil
Procedure section 664.6 had not been met. Sierra’s motion for reconsideration was
denied by Judge Karnow on December 21, 2012.
Sierra appealed from the December 21, 2012 order (appeal No. A137743), which
was later dismissed on the basis that a ruling on a motion for reconsideration is not an
appealable order. On March 12, 2013, Sierra filed a notice of appeal from the
September 2012 order denying his motion to enforce settlement. That appeal
(No. A138227) was dismissed on the basis that the order was not appealable and in any
event untimely. No appeal was taken from the July 26, 2012 judgment dismissing
Sierra’s second amended complaint.
Respondents’ Cross-Complaint
Respondents had filed a cross-complaint against Sierra in October 2011, claiming
damages for breach of the Settlement. Sierra failed to answer, and his default was
entered in August 2012. In February 2013, Respondents stipulated to set aside the
default, were granted leave to file an amended cross-complaint, and filed their first
amended cross-complaint (FACC), pleading a single cause of action for breach of
contract. The Settlement was attached, and incorporated by reference, to the FACC. The
4
Hewlett told the court that “we’re filing criminal charges against you.”
5
The court also found the challenge to Judge Kahn to be untimely, and that
judicial immunity barred any claim against Judge Kahn.
4
FACC sought compensatory damages for $58,000 (the amount of consideration paid to
Sierra for the Settlement) and $1,720 (for filing fees paid by Respondents). Sierra
demurred and moved to strike the complaint. In his general motion to strike, Sierra
alleged in a single paragraph that the FACC was a SLAPP6 pleading. The demurrer was
overruled and the motion was denied on May 8, 2013 (Hon. Peter Busch). Judge Busch
held that, to the extent that Sierra was presenting an anti-SLAPP motion under Code of
Civil Procedure section 425.16, he presented no law or evidence to show that the FACC
was directed against protected activity. Sierra was given until June 10, 2013, to file an
answer. The register of actions indicates that Sierra filed an answer to the FACC on
June 7, 2013.7
By case management order dated June 13, 2013 (Order), the court gave notice to
the parties that the matter was set for trial on January 6, 2014. As of that date, the only
operative pleading was the FACC. The Order advised the parties that any objection to
the trial date was required to be presented at an objection hearing on June 26, 2013, at
10:30 a.m. in Department 610, and thereafter any request for continuance of the trial date
must be submitted to the “Presiding Judge in Department 206.” The register of actions
reflects no objection to the Order. An unsuccessful settlement conference was held on
December 16, 2013; on December 24, Respondents filed and served a request for Sierra’s
attendance at trial. On January 2, 2014, Sierra filed a motion in limine, including a list of
his proposed exhibits, and requested a jury trial. Sierra failed to post jury fees, and the
matter was assigned to the court’s short-cause calendar. On January 6, 2014, the matter
was called on the master calendar, and Sierra failed to appear. Presiding Judge
Cynthia M. Lee assigned the case to Judge Paul Alvarado for trial. Respondents
submitted a trial brief, which is not in the record provided by Sierra. Judge Alvarado
entered judgment for Respondents consistent with the prayer in the FACC, awarding
6
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’ ”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 732, fn. 1.)
7
The answer is not included within the record designated by Sierra. In his
opening brief, Sierra says that he filed a general denial.
5
compensatory damages in the total amount of $59,720.00. A notice of entry of judgment
was served on January 8, 2014. Sierra filed a timely notice of appeal on January 15,
2014.
II. DISCUSSION
We once again find ourselves attempting to make sense of pro se pleadings which,
while obviously filed in this case with some level of professional assistance, largely
ignore the requirements of the California Rules of Court. As noted ante, Sierra’s record
references consist primarily of quotations from portions of his own pleadings (without
page citations), and his citations to the trial court record make almost no reference to any
location in that record where documents can be found or are simply annotated as “See
Register.” It is not the responsibility of this court to search through the record seeking
evidence in support of a party’s position. (Williams v. Williams (1971) 14 Cal. App. 3d
560, 565.)
From what we can glean from the record provided, the first obvious fact is that no
cognizable issues are before us relating to dismissal of Sierra’s second amended
complaint. The only timely appeal was taken from the “judgment after court trial,” i.e.,
the judgment on Respondents’ FACC entered by Judge Alvarado on January 6, 2014.
The second is that Sierra has forfeited most, if not all, of his arguments on appeal, by
failing to apply cited legal principles to the particular facts of the FACC and to support
his arguments with citations to specific evidence in the record. (See Guthrey v. State of
California (1998) 63 Cal. App. 4th 1108, 1115–1116; Cal. Rules of Court,
rule 8.204(a)(1)(C).)
We reiterate that Sierra is not exempt from the rules because he has chosen to
represent himself on appeal in propria persona. (Nwosu v. Uba (2004) 122 Cal. App. 4th
1229, 1246; McComber v. Wells (1999) 72 Cal. App. 4th 512, 522–523.) “[S]uch a party
is to be treated like any other party and is entitled to the same, but no greater
consideration than other litigants and attorneys. [Citation.]” (Barton v. New United
Motor Manufacturing, Inc. (1996) 43 Cal. App. 4th 1200, 1210.)
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A. Challenges to Judgment on Respondents’ FACC
Even if were we to ignore the self-evident defects in Sierra’s briefing, we would
find that he has failed to overcome the basic hurdle that “an appealed judgment is
presumed correct, and appellant bears the burden of overcoming the presumption of
correctness. [Citation.]” (Boyle v. CertainTeed Corp. (2006) 137 Cal. App. 4th 645, 649–
650.) “[T]he party asserting trial court error may not . . . rest on the bare assertion of
error but must present argument and legal authority on each point raised. [Citation.]”
(Id. at p. 649.) Error must be affirmatively shown. (People v. Giordano (2007)
42 Cal. 4th 644, 666.)
Sierra’s opening brief appears in large part to be a regurgitation of the allegations
of his original and amended complaints, and of his demurrer and motion to strike the
FACC. He also attempts to raise additional issues, such as a claim of violation of the
Rosenthal Fair Debt Collection Practices Act (RFDCPA; Civ. Code, § 1788 et seq.), that
do not appear to have been presented to the trial court. He provides little in the way of
reasoned argument or legal analysis, citing biblical quotations or legal maxims. To the
extent Sierra cites legal authority, he does not explain how that authority is applicable to
the circumstances of this case. “To demonstrate error, appellant must present meaningful
legal analysis supported by citations to authority and citations to facts in the record that
support the claim of error. [Citations.]” (In re S.C. (2006) 138 Cal. App. 4th 396, 408; see
also Cal. Rules of Court, rule 8.204(a)(1)(C).)
Sierra spends most of his briefing challenging the legal sufficiency of the FACC.
He seems not to appreciate that we are reviewing the judgment after a court trial before
Judge Alvarado, and not the correctness of Judge Busch’s denial of Sierra’s demurrer and
motion to strike months earlier. Under the general heading of “Mistakes of Fact and
Law,” Sierra contends the FACC is (1) financial elder abuse because it caused him undue
financial strain; (2) a SLAPP; (3) moot (“because it does not present any actual
controversy”); (4) time-barred (because it was filed more than four years after the
Settlement); (5) unconscionable, unripe, and does not state facts sufficient to state a cause
of action (because it is based on the Settlement); and (6) does not support the damages
7
claimed. He further contends that Respondents “conceded financial elder abuse,
mootness, unconscionability and unripeness” by not addressing those issues in response
to his motion to strike in the trial court, and that Respondents, by pursuing the FACC,
violated the RFDCPA. Sierra supports none of his contentions with reasoned legal
argument. When an appellant raises an issue “but fails to support it with reasoned
argument and citations to authority, we treat the point as waived. [Citations.]” (Badie v.
Bank of America (1998) 67 Cal. App. 4th 779, 784–785; Guthrey v. State of California,
supra, 63 Cal.App.4th at pp. 1115–1116 [claim on appeal may be denied if unsupported
by argument applying legal principles to particular facts of the case].)
Moreover, in challenging the judgment against him, Sierra provides none of the
briefing and evidence submitted to the trial court by Respondents. In our review, we
must presume that the record contains evidence to support every finding of fact, unless an
appellant affirmatively shows otherwise. (Huong Que, Inc. v Luu (2007)
150 Cal. App. 4th 400, 409.) “ ‘ “[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.” ’ [Citation.]” (Foust v. San Jose Construction Co., Inc.
(2011) 198 Cal. App. 4th 181, 187.) Failure to provide an adequate record for review
means that Sierra does not begin to meet his burden of establishing that the trial court
erred in finding that he breached the terms of the Settlement, and that Respondents
suffered damages as a result.
B. Denial of Continuance and Due Process Claim
Sierra’s notice of appeal cites as an “Other” ground of appeal that “Plaintiff did
not appear in court due to a medical condition.” In his opening brief, he alleges that he
“could not attend the January 6, 2014 jury trial due to a medical condition as indicated in
a letter provided to Judge Alvarado and Respondents but Judge Alvarado proceeded to
trial without Appellant present and ruled against Appellant.” He otherwise makes no
mention of the issue in the opening brief. Only in his reply brief does Sierra argue that
the court abused its discretion in proceeding to trial in his absence. We do not consider
8
arguments raised for the first time in a reply brief. (Julian v. Hartford Underwriters Ins.
Co. (2005) 35 Cal. 4th 747, 761, fn. 4.)
In a rambling and generally incoherent argument in his opening brief, Sierra
contends that the trial court “violated the Due Process Clause,” but does not suggest how
the court did so. Even if we were willing to assume that Sierra’s abuse of discretion
argument is somewhere camouflaged within this undifferentiated morass, the claim
would still fail.
First, Sierra again fails to provide an adequate record for review. He does not
provide us with the “letter” purportedly sent to Judge Alvarado, nor does he indicate
when and how it was supposedly communicated to the court. He does not provide court
minutes of the hearing, and no such communication is mentioned in the register of
actions or reporter’s transcript.8 “[I]f the record is inadequate for meaningful review, the
appellant defaults and the decision of the trial court should be affirmed. [Citations.]”
(Gee v. American Realty & Construction, Inc. (2002) 99 Cal. App. 4th 1412, 1416.)
Second, Sierra fails to establish any abuse of the trial court’s discretion. If proper
notice of the trial has been given, either party may bring an issue to trial and proceed to
judgment in the absence of the other party. (Code Civ. Proc., § 594;9 In re Marriage of
Goddard (2004) 33 Cal. 4th 49, 58.) The required notice usually must be given at least
8
The only item we find in any of the materials filed with this court is an “exhibit”
improperly attached to Sierra’s civil case information statement (Judicial Council Forms,
form APP-004). The “exhibit” is a preprinted form with the caption “Arcilla Medical
Clinic” dated January 3, 2014, indicating that Sierra would be absent from work from
January 4, 2014, through January 14, 2014. The reason is listed as “Medical Condition,”
and no other explanation is included. Nothing indicates that this document is the “letter”
Sierra references, or that it was ever otherwise submitted to the trial court.
9
“In superior courts either party may bring an issue to trial or to a hearing, and, in
the absence of the adverse party, unless the court, for good cause, otherwise directs, may
proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the
case may require; provided, however, if the issue to be tried is an issue of fact, proof shall
first be made to the satisfaction of the court that the adverse party has had 15 days’ notice
of such trial . . . . If the adverse party has served notice of trial upon the party seeking the
dismissal, verdict, or judgment at least five days prior to the trial, the adverse party shall
be deemed to have had notice.” (Code Civ. Proc., § 594, subd. (a).)
9
15 days before the date set for trial. (Code Civ. Proc., § 594, subd. (a).) Sierra
unquestionably had such notice and did not object to the trial date when that notice was
given. Continuance of a trial, once set, is disfavored and requires an affirmative showing
of good cause. (County of San Bernardino v. Doria Mining & Engineering Corp. (1977)
72 Cal. App. 3d 776, 779; Young v. Redman (1976) 55 Cal. App. 3d 827, 831–832;
Cal. Rules of Court, rule 3.1332(c).) Clearly no motion to continue was filed, as required
by California Rules of Court, rule 3.1332(b),10 and no supporting declarations were
submitted to explain what “medical condition” prevented Sierra from attending trial.11
If a request to continue trial was in fact made, and if it was denied, the court would have
been entirely justified in doing so. Further, in the absence of a record, we would not
disturb the implied finding of the trial court that Sierra had failed affirmatively to show
good cause for the continuance in exercising its discretion to deny a motion on the
morning of trial. (See In re Marriage of Teegarden (1986) 181 Cal. App. 3d 401, 407.)
III. DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
10
See also the Superior Court of the City and County of San Francisco, Local
Rules, rule 6.0(B): “Continuances. The Presiding Judge determines motions for
continuance of a case of a case set for trial on the trial calendar . . . . These motions must
be accompanied by supporting declarations. No motion for continuance of a trial date
may be made or heard in any other department. The Presiding Judge on Stipulation of
the parties may continue trial to a date convenient to the Court by an ex parte application.
Parties seeking a stipulated continuance of the trial date must submit (1) an ex parte
application establishing good cause for the continuance, including a declaration there
have been no prior continuances or stating the number of prior continuances, the reason
for those, and the party seeking those, (2) a stipulation by all parties, and (3) a proposed
order. No continuance will be granted except for good cause shown, such as serious
accident, illness or death, or unanticipated unavailability of parties or witnesses. Without
a showing of good cause, no case will be continued on the trial calendar on the ground
that a date for a hearing in the Law and Motion Department or other department has not
been scheduled or heard prior to the trial date.”
11
Nor does Sierra offer any explanation here.
10
_________________________
BRUINIERS, J.
WE CONCUR:
_________________________
SIMONS, Acting P. J.
_________________________
NEEDHAM, J.
11