Allen & Kimbell v. Bender CA2/6

Filed 12/1/14 Allen & Kimbell v. Bender CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX
ALLEN & KIMBELL, 2d Civil No. B246879
(Super. Ct. No. 1385303)
Plaintiff and Respondent, (Santa Barbara County)
v.
NANCY BENDER,
Defendant and Appellant.
Nancy Bender appeals the judgment awarding unpaid legal fees to
respondent Allen & Kimbell. Appellant contends (1) the trial court abused its discretion
in denying her ex parte application to continue trial; and (2) the judgment is void because
it was entered after she removed the action to federal court. The record on appeal is
inadequate to establish either claim. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Appellant signed a retainer and fee agreement for respondent law firm to
represent her as beneficiary under a family trust. In February 2012,1 respondent filed suit
against appellant for unpaid legal fees and costs. Appellant subsequently rejected an
1 All further date references are to the year 2012.
arbitration award in respondent's favor and elected a trial de novo. A mandatory
settlement conference (MSC) was set for November 30, and trial was set for December
11. The court ordered the parties to participate in a case management alternate dispute
resolution settlement session (CMADRESS). Appellant objected to the assigned neutral,
and an alternate neutral was assigned on July 30.
On November 2, appellant filed an ex parte application to continue the trial
and MSC. The court denied the application. Appellant did not attend the November 30th
MSC and was accordingly sanctioned.
The civil docket sheet indicates that appellant filed a "notice of removal" on
December 11. That same date, the court received a letter from appellant's physician
stating that appellant had been evaluated on December 6 "with complaints of fatigue and
inability to concentrate[.]" The physician added: "[Appellant] has requested me to write
a letter to the Court explaining her situation, and requesting that the upcoming trial date
be postponed due to her inability to cope with one more stress in her life. She feels that
within the next three to four months, . . . she will be able to respond adequately to the
upcoming litigation."
At a December 12 pretrial conference, appellant's attorney moved to
disqualify the trial judge under Code of Civil Procedure section 170.3. The court denied
the motion and noted it "has been alerted that [appellant] has taken steps to remove this
case . . . ." The court found that "[appellant's] voluntary participation in this litigation
since 6/28/12 constitutes a waiver and/or an estoppel of this new action." The court also
found that appellant's attempt to remove the action to federal court was untimely.
Neither appellant nor her attorney appeared at trial on December 13. At the
conclusion of the trial, the court entered judgment in respondent's favor in the amount of
$92,120.50, exclusive of costs and interest. Appellant timely appealed. In designating
the record on appeal, she did not include her ex parte application to continue trial, the
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reporter's transcript of the hearing on the application and the court's ruling thereon, or the
notice of removal referred to on the civil docket sheet.2
DISCUSSION
Appellant contends the judgment against her must be reversed because (1)
the court abused its discretion in denying her November 2 ex parte application to
continue the trial; and (2) the judgment was entered after appellant removed the action to
federal court. We reject both claims for lack of an adequate record.
"A fundamental rule of appellate review is that '"[a] judgment or order of
the lower court is presumed correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error must be affirmatively
shown."' [Citations.]" (Conservatorship of Rand (1996) 49 Cal.App.4th 835, 841.) To
overcome this presumption, the appealing party must provide an adequate record that
affirmatively demonstrates error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) If the
appellant does not provide both the pertinent pleadings and reporter's transcript, we must
presume the court's ruling is correct unless error appears on the face of the record. (Cal.
Rules of Court, rule 8.163 [rule 8.163]; National Secretarial Service, Inc. v. Froehlich
(1989) 210 Cal.App.3d 510, 522.)
Appellant challenges the court's denial of her ex parte application to
continue the trial, yet her designation of the record on appeal does not include the ex
parte application, the reporter's transcript of the hearing on the application, or the order of
denial. Although respondent has moved to augment the record to include the ex parte
application to continue trial, the reporter's transcript and order are still missing.
Moreover, no error in denying appellant's application to continue trial is
apparent from the face of the record. Appellant claimed she needed more time to prepare
for trial because (1) she "did not receive notice of the fee arbitration decision until late
May 2012 - early June 2012," and (2) "the parties' referral to CMADRESS was
2 We grant respondent's motion to augment the record on appeal to include the ex
parte application to continue trial, the December 12 pretrial conference order, and the
notice of reassignment of the CMADRESS neutral.
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reasonably delayed because of a conflict." The December 11 trial date was set on July 3,
and the CMADRESS neutral was reassigned at appellant's request four weeks later.
Appellant fails to explain why she needed more than five months to prepare for trial, or
how the reassignment of the CMADRESS neutral interfered with her ability to do so.
Although she notes that she also filed a motion to compel further responses to her
requests for discovery, she fails to undermine the court's conclusion that the motion was
untimely. Respondent submits that appellant's moving papers and the opposition thereto
would demonstrate that the motion was frivolous. By failing to include these documents
in the record on appeal, appellant cannot be heard to complain that the court should have
given her additional time to conduct discovery. Because appellant fails to overcome the
presumption that the court's denial of her application to continue trial was correct, the
court's ruling must be affirmed. (Rule 8.163; National Secretarial Service, Inc. v.
Froehlich, supra, 210 Cal.App.3d at p. 522.)3
The record is similarly inadequate to support appellant's claim that she
effected removal of the case to federal court on December 11, such that the state court
lacked jurisdiction to hold a trial and enter judgment in respondent's favor. "The right of
removal is statutory, and the requirements strictly construed. [Citation.]" (Washington
v. Chimei Innolux Corp. (9th Cir. 2011) 659 F.3d 842, 847.) Removal to federal court
requires three steps. The removal statute (28 U.S.C. § 1446(d)) provides that the
removing party must (1) file the notice of removal in federal court; (2) give written notice
to all adverse parties; and (3) file a copy of the notice with the clerk of the state court.
The state court does not lose jurisdiction until all three requirements are met. (Hampton
v. Union Pacific R. Co. (E.D. Tex. 1999) 81 F.Supp.2d 703, 707; La Maina v. Brannon
(D.N.J. 1992) 804 F.Supp. 607, 612–613 [filing a notice of removal with the state court
clerk did not divest court of jurisdiction until the plaintiff's counsel was also notified].)
3 To the extent appellant asserts that her health was relevant to the court's ruling,
her ex parte application made no reference to any such illness. She did present a letter
from her physician on the trial call date, but merely offering a "doctor's note" on the eve
of trial is not a procedurally proper means of seeking a continuance. Moreover, the
physician did not state an opinion that appellant's health necessitated a continuance.
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Here, we are presented with a portion of the civil docket indicating that
appellant filed a document entitled "notice of removal" on December 11. The actual
document is not included, nor does anything else in the record indicate (1) that a notice of
removal was filed in federal court on or before December 11, or (2) that a copy of the
removal notice was served on respondent's counsel. The only other reference to a notice
of removal is found in the court's December 12 pretrial order, but that reference merely
tells us that "[t]he [c]ourt has been alerted that the Defendant has taken steps to remove
this case from this [c]ourt's jurisdiction . . . ." Because the requirements of the removal
statute must be strictly construed and the record fails to demonstrate that all three
prerequisites to removal were met, appellant fails to overcome the presumption that the
court properly entered judgment in respondent's favor. In light of this conclusion, we
need not address the propriety of the court's proffered reasons for concluding the notice
of removal was ineffective.
The judgment is affirmed. Respondent shall recover costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Thomas P. Anderle, Judge
Superior Court County of Santa Barbara
______________________________
Cohn Stewart, Martin P. Cohn, Raymond Rengo for Defendant and
Appellant.
Allen & Kimbell, John H. Parke, James M. Sweeney for Plaintiff and
Respondent.
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