City and County of San Francisco v. Bezhanski CA1/5 ( 2023 )

Filed 10/10/23 City and County of San Francisco v. Bezhanski 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff and Respondent, A167570
v.
STILIYAN BEZHANSKI, (City & County of San Francisco
Defendant and Appellant. Super. Ct. No. CGC-21-594112)
MEMORANDUM OPINION1
This appeal arises from a default judgment entered against defendant
Stiliyan Bezhanski after plaintiff City and County of San Francisco
(City & County) filed a complaint for collection of $48,174.03 in unpaid
administrative penalties for multiple violations of the San Francisco
Administrative Code (S.F. Administrative Code). Bezhanski, proceeding
in propria persona at all relevant times, did not move in the trial court to set
aside the default and resulting judgment. (Code Civ. Proc., § 473.)
Nonetheless, Bezhanski argues on appeal that the City & County lacked
authority under the general law to impose administrative penalties in excess
1 We resolve this case by a memorandum opinion pursuant to
California Standards of Judicial Administration, section 8.1.
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of $1,000 for a single code violation, citing Government Code sections 25132
and 36901.
It is well established that judgments and orders are presumed correct
and error must be affirmatively shown on appeal. (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.) As a consequence of this rule, the appellant (here,
Bezhanski) has the burden of providing the court with an adequate record to
determine whether any error was committed below. (Maria P. v. Riles (1987)
43 Cal.3d 1281, 1295.) Moreover, because the reviewing court must make all
presumptions in favor of the validity of the judgment, failure to provide an
adequate record on an issue raised on appeal requires that the issue be
resolved against the appellant. (Id. at pp. 1295–1296; Elena S. v. Kroutik
(2016) 247 Cal.App.4th 570, 576.)
In this case, the record on appeal consists of an appendix that includes
a declaration from a senior analyst with the City & County’s Planning
Department, Zoning and Compliance Division, Office of Short-Term Rentals.
According to this declaration, a hearing officer determined that a residential
unit on Bezhanski’s property was in violation of S.F. Administrative Code
chapter 41A for being offered and/or operated for an unauthorized tourist or
transient use. Bezhanski was assessed $42,350 in administrative penalties.
This amount was calculated as follows: (1) $39,930 in penalties for notice of
violation (NOV) 1, consisting of 66 days times $484 per unit, per day ($31,944
total) plus $7,986 in enforcement fees; and (2) $2,420 for NOV 2, consisting of
2 days times $968 per unit, per day ($1,936 total) plus $484 in enforcement
fees.
The record on appeal also includes the default judgment awarding the
City & County a total of $48,174.03. This amount includes $42,350 in
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damages (representing the assessed administrative penalties), $3,762.71 in
attorney fees, and $2,061.32 in previously ordered sanctions.
However, the record on appeal does not contain several documents
necessary for consideration of Bezhanski’s contention that the administrative
penalties imposed by the City & County against him were not authorized by
Government Code section 25132 or by the general law, assuming for the sake
of argument this issue is properly before this court (see pp. 3–4, post). First,
the clerk’s transcript does not contain a copy of the summons, the operative
complaint or the request for entry of default, which made up the judgment
roll in the superior court. (Code Civ. Proc., § 670, subd. (a) [“In case the
complaint is not answered by any defendant, [the judgment roll consists of]
the summons, with the affidavit or proof of service; the complaint; the request
for entry of default with a memorandum indorsed thereon that the default of
the defendant in not answering was entered, and a copy of the judgment”].)
In addition, the record does not include a reporter’s transcript that may have
shed light on the trial court’s reasoning in awarding the City & County
$42,350 in damages. While Bezhanski’s opening brief purports to describe
(and quote from) the trial court’s legal analysis, there is no citation to any
document in the record where this analysis can be found.
These omissions are fatal. An appellant who failed to move to set aside
a default judgment in the trial court may challenge the default judgment on
appeal only on limited grounds such as lack of jurisdiction or fundamental
pleading defects. (Bristol Convalescent Hospital v. Stone (1968) 258
Cal.App.2d 848, 859; Corona v. Lundigan (1984) 158 Cal.App.3d 764, 767–
768.) Bezhanski did not raise these grounds on appeal, and even if he had,
the record is inadequate to address them. Under these circumstances, the
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default judgment must be affirmed.2 (In re Linda D. (1970) 3 Cal.App.3d 567,
571 [“It is settled that matters not presented by the record cannot be
considered on appeal”].)
DISPOSITION
The judgment is affirmed.
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Chou, J.
A167570/City and County of San Francisco v. Bezhanski
2 We acknowledge Bezhanski is a self-represented litigant.
However,
this circumstance does not excuse his noncompliance with mandatory rules of
appellate procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)
4