Leonard, Dicker & Schreiber v. Montero CA2/5 ( 2020 )

Filed 11/25/20 Leonard, Dicker & Schreiber v. Montero CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
LEONARD, DICKER & B298011
SCHREIBER LLP,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No.
BC505671)
v.
GUILLERMO MONTERO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert S. Draper, Judge. Affirmed.
Guillermo Montero, in pro. per., for Defendant and
Appellant.
Leonard, Dicker & Schreiber, Kevin S. Dicker, for Plaintiff
and Respondent.
Plaintiff and respondent Leonard, Dicker & Schreiber LLP
(plaintiff) sued defendant and appellant Guillermo Montero
(defendant) in 2013 to recover unpaid legal fees. At the time,
defendant’s wife, Maria Montero (Maria) was in the midst of a
Chapter 11 bankruptcy proceeding. After the bankruptcy court
closed Maria’s bankruptcy case, the trial court in this case held a
bench trial in February 2019 (there were several prior
continuances to accommodate a stay entered in the bankruptcy
proceedings) and ultimately entered a judgment for defendant.
We are asked to consider—on the sparse record presented on
appeal, which includes no reporter’s transcript of any hearings
held in this matter, no reporter’s transcript of the trial
proceedings, and no exhibits admitted in evidence during trial—
whether the judgment should be reversed because the issues
tried were barred by res judicata or violated the terms of the
bankruptcy court’s stay.
I. BACKGROUND
Maria filed a petition for Chapter 11 bankruptcy in October
2009. The Bankruptcy Court entered an order confirming
Maria’s fifth amended plan of reorganization (the Reorganization
Plan) in November 2012. A “miscellaneous” provision of the
Reorganization Plan stated Maria would request discharge and
proceed to request entry of a final decree in less than five years.
It further recited that all liens characterized as unsecured would
be extinguished on confirmation of the plan. Plaintiff’s claim was
listed as a disputed claim on Maria’s schedule of unsecured non-
priority claims. It was identified as a disputed community claim
with defendant.
2
Plaintiff filed a civil complaint against defendant in Los
Angeles Superior Court on April 11, 2013. The complaint stated
causes of action for breach of contract, open book account, and
quantum meruit based on the following allegations. Plaintiff
represented defendant in four legal matters, beginning in July
2006. Plaintiff and defendant entered into a written retainer
agreement pursuant to which plaintiff was to charge defendant
on an hourly basis, plus costs, and pursuant to which bills would
be sent monthly and would be due upon receipt with interest at
the rate of 10 percent in the event that payment was not made in
a timely fashion. As of March 31, 2013, defendant owed plaintiff
in excess of $375,000.
In early February 2015, the Bankruptcy Court entered an
“Order Granting Motion of the Reorganized Debtor for Section
105 Relief Extending Stay to Guillermo Montero Regarding
Claim of Leonard, Dicker & Schreiber, LLP.”1 The order specified
plaintiff’s case against defendant was “hereby enjoined and
stayed until the completion of the Chapter 11 plan in [that] case
(Case No. 2:09-bk-37943-RN), which currently is anticipated to be
completed on or approximately December 2017.”
In May 2015, plaintiff filed a declaration from one of its
attorneys stating a final decree had been issued in Maria’s
bankruptcy case earlier that month. The declaration further
asserted that because the bankruptcy matter had been closed,
there was no longer a stay applicable to this case. The docket in
the bankruptcy case reflects the case was closed with a final
1
Defendant requested we take judicial notice of both the
Reorganization Plan and the Bankruptcy Court’s February 2015
order. We previously granted the request.
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decree, and further states the “plan of reorganization . . . has
been fully implemented.”
The following month, defendant filed another notice of stay,
again attaching the Bankruptcy Court’s February 2015 order.
The trial court held periodic status conferences over the next few
years and continued to confirm the stay was still in effect.
In April 2018, the trial court held another status conference
regarding the bankruptcy matter. The minute order reflects the
court conferred with counsel regarding the status of the
bankruptcy and then set a trial date in February 2019.
Approximately a month before trial, defendant asked the court to
again take notice of the February 2015 order extending the stay
in plaintiff’s case. Defendant asserted the bankruptcy case had
not been dismissed and would not be dismissed until the
reorganization plan was completed; defendant argued proceeding
with trial would violate the bankruptcy court order.
The case proceeded to a bench trial on February 4, 2019.
Following trial, the court asked the parties for additional
documentation concerning the billing records and payments
made. The court indicated it would take the matter under
submission after it received the requested information.
The court issued an order after trial later that month. The
court found plaintiff established it performed the services it
alleged with respect to the lawsuits. At the rates agreed to by
defendant, plaintiff was owed an unpaid balance of $251,928.57.
The court found plaintiff was entitled to judgment in the amount
of the unpaid balance plus interest: $336,273.38.
The court entered judgment on March 29, 2019. Notice of
entry of judgment was served the same day. Defendant noticed
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this appeal from the judgment the court entered after the bench
trial.
II. DISCUSSION
Putting aside a statute of limitations argument and a
statute of frauds argument that are waived for failure to present
them in his opening brief (Varjabedian v. City of Madera (1977)
20 Cal. 3d 285, 295, fn. 11; Cox v. Bonni (2018) 30 Cal. App. 5th
287, 311), defendant’s arguments for reversal turn solely on his
view of the effect his wife’s bankruptcy proceedings should have
had on the prosecution of this action. He argues the judgment in
plaintiff’s favor should have been barred by the doctrine of claim
preclusion (based on what he says was litigated in the
bankruptcy proceedings and in this case). He also argues
plaintiff’s civil action should not have gone forward because a
bankruptcy court stay was then in place that prevented it.
Defendant succeeds on neither claim, however, because the
record he presents to enable appellate review is woefully
deficient.
We presume a trial court’s judgment is correct, and “‘[a]ll
intendments and presumptions are indulged to support it on
matters as to which the record is silent . . . .’” (Denham v.
Superior Court (1970) 2 Cal. 3d 557, 564.) It is the appellant’s
burden to affirmatively demonstrate error through an adequate
record. (Ibid.; see also Ballard v. Uribe (1986) 41 Cal. 3d 564, 574
(plur. opn. of Grodin, J.).)
The appellate record in this case includes no reporter’s
transcripts of the proceedings below—no transcripts of any
hearings at which the bankruptcy proceedings were discussed
and no transcript of the trial proceedings from which defendant
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appeals. We also have nothing in our record that shows what, if
any, documents or other materials were presented to the court
(as exhibits or otherwise) during trial.
This record provided by defendant is inadequate to
overcome the presumption of correctness that attaches to the
judgment from which he appeals. Without a reliable record of
what was at issue at trial, we cannot even begin to assess
whether the causes of action tried were identical to a claim or
issue litigated in the bankruptcy proceedings (see generally
Boeken v. Philip Morris USA, Inc. (2010) 48 Cal. 4th 788, 797); in
fact, we do not even know if claim preclusion was a defense
advanced at trial. In addition, without a record of what
transpired at trial (and without reporter’s transcripts that would
memorialize representations made and documents considered at
pretrial hearings) we have no basis to question the trial court’s
implicit finding (or perhaps even an explicit finding) that a
bankruptcy stay was no longer a bar to rendering judgment in
this action (just shy of six years after it was first filed and four
years after the bankruptcy court entered its 2015 stay).2
2
Our resolution of this appeal naturally does not constrain
the bankruptcy court from taking any action it is authorized to
take if it is asked to find, and ultimately does find, its previously
entered stay was violated.
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DISPOSITION
The judgment is affirmed. Plaintiff is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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