Serpa v. Berchtold CA5

Filed 9/14/20 Serpa v. Berchtold CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
JAMES A. SERPA, SR. et al., F077010
Plaintiffs, Cross-defendants and (Super. Ct. No. CV58123)
Appellants,
v. OPINION
RICHARD BERCHTOLD, as Co-trustee, etc. et
al.,
Defendants, Cross-complainants and
Respondents;
DANNIE LEE BERCHTOLD,
Defendant, Cross-complainant and
Respondent.
APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M.
Seibert, Judge.
James A. Serpa, Sr. and Kathleen B. Serpa, in pro. per.; Law Office of Nicco
Capozzi and Nicco Capozzi for Plaintiffs, Cross-defendants and Appellants.
Dannie Berchtold, in pro. per.; Seibert Bautista Montoya, Shannon Seibert and Joe
Bautista for Defendants, Cross-complainants and Respondents.
-ooOoo-
Appellants appeal from the judgment entered after a court trial. They contend the
judgment should be reversed because the trial court clerk could not locate the trial
exhibits and transmit them to this court for the appeal. Because the appellant bears the
burden of providing an adequate record for meaningful review, we conclude it was
appellants’ responsibility, in the absence of the original trial exhibits, to attempt to
reconstruct the exhibits. Absent a showing that the exhibits could not be adequately
reconstructed and that appellants could not establish the trial court’s alleged error
without the exhibits, appellants have not demonstrated grounds for reversal.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The clerk’s transcript on appeal is sparse. It contains only the judgment, a notice
of entry of judgment, the notice of appeal, a post-judgment order awarding attorney fees
to some respondents, and a designation of the record on appeal. The designation of
record did not identify any exhibits to be included in the transcript.
The reporter’s transcript indicates there were “15 or so causes of action” in the
first amended complaint, which appellants were pursuing. The action was based on five
secured loans made by respondents to appellants. Appellants raised an issue of usury;
they also accused at least one of the respondents of interfering with their prior bankruptcy
proceeding, causing the loss of the residence that was the security for the loans.
Respondents cross-complained. After a five-day court trial, judgment was entered on the
complaint and the cross-complaint in favor of all respondents except Dannie Berchtold in
his individual capacity. As to Dannie Berchtold individually, appellants and Berchtold
were to take nothing on the complaint and cross-complaint. Appellants appeal from the
judgment.
DISCUSSION
Appellants’ opening brief does not identify any error in the prejudgment trial court
proceedings. It raises only one issue: missing exhibits. Appellants moved to augment
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the record on appeal with the exhibits from the trial; the motion was granted. The trial
court clerk, however, was unable to locate any of the exhibits. The clerk requested the
exhibits from the trial attorneys, but respondents’ attorney stated her files had been
purged after the trial, and appellants’ trial attorney stated appellants had collected all the
papers related to the case from him. Appellants told the clerk they did not have any of
the exhibits and did not know who did. In their brief, appellants “request reversal or, in
the alternative, an order to the trial court to attempt to reconstruct the evidence.”
I. Record on Appeal
“Within 10 days after filing the notice of appeal, an appellant must serve and file a
notice in the superior court designating the record on appeal.” (Cal. Rules of Court, rule
8.121(a).)1 Generally, “all exhibits admitted in evidence, refused, or lodged are deemed
part of the record, but a party wanting a copy of an exhibit included in the transcript must
specify that exhibit by number or letter in its notice of designation. If the superior court
has returned a designated exhibit to a party, the party in possession of the exhibit must
deliver it to the superior court clerk within 10 days after the notice designating the exhibit
is served.” (Rule 8.122(a)(3).) Appellants initially did not designate any exhibits to be
included in the transcript.
If a party subsequently realizes that additional documents are needed in the record
on appeal, the party may move to have the record augmented to include “[a]ny document
filed or lodged in the case in superior court.” (Rule 8.155(a)(1)(A).) The party must
attach a copy of the document to the motion to augment or, if the party cannot attach a
copy, the party must identify the document by title and filing date. (Rules 8.155(a)(2),
(3), 8.122(a)(1).) If, after the respondent’s brief is filed, the appellant wants the appellate
court to consider an exhibit that was not included in the clerk’s transcript, the appellant
can designate that exhibit as part of the record within 10 days after the last respondent’s
1 All further references to rules are to the California Rules of Court.
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brief is filed. (Rule 8.224(a)(1).) Within 20 days after the notice of designation is filed,
the superior court clerk must send any designated exhibits in the clerk’s possession to the
reviewing court. (Rule 8.224(b)(1).) If a party is in possession of the designated
exhibits, the party must send them directly to the reviewing court. (Rule 8.224(b)(2).)
About three months after the record on appeal was filed, appellants, acting in
propria persona, moved to augment it with all of the trial exhibits; they asserted they had
discovered the exhibits were not included in the clerk’s or reporter’s transcripts, their trial
attorney was not cooperating with access to the case file, and they needed the exhibits to
complete their brief. This court granted the motion. On February 14, 2019, the trial court
clerk filed a declaration regarding the inability to locate the exhibits.
II. Burden on Appellants
“[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. [Citations.] ‘This is not only a general principle
of appellate practice but an ingredient of the constitutional doctrine of reversible error.’
… ‘ “[I]f the record is inadequate for meaningful review, the appellant defaults and the
decision of the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [the
appellant] has the burden of providing an adequate record. [Citation.] Failure to provide
an adequate record on an issue requires that the issue be resolved against [the
appellant].’ ” (Jameson v. Desta (2018) 5 Cal. 5th 594, 608–609.)
“ ‘[T]he burden is always upon an appellant to use reasonable diligence to perfect
and prosecute his appeal.’ ” (Caldwell v. Harvey (1948) 85 Cal. App. 2d 104, 107.) In
Caldwell, the appellant filed a notice of appeal and requested clerk’s and reporter’s
transcripts. (Id. at p. 106.) The court reporter took months to prepare the reporter’s
transcript and failed to request any extension from the court. (Ibid.) The respondent
moved to dismiss the appeal for failure to file the record; the record, including the
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reporter’s transcript, was filed before the hearing of the respondent’s motion to dismiss.
The reporter’s transcript was accompanied by the declaration of the court reporter
regarding the length of time it took to prepare the reporter’s transcript. At the hearing,
the appellant argued the appeal should not be dismissed. (Id. at pp. 105–106.) Although
the court reporter had caused the delay, the court attributed responsibility to the appellant.
It noted the burden of perfecting and prosecuting the appeal was on the appellant.
“ ‘Where some step is required by the rules to be taken by an officer of the court and such
officer delays unreasonably the appellant cannot sit by indefinitely and do nothing. He
must exercise a reasonable amount of diligence to investigate any unwarranted delays
and if necessary take steps to see that the legal duty is performed.’ ” (Id. at p. 107.) The
appellant’s counsel had only made occasional inquiries of the court reporter about his
progress in preparing the transcript. (Id. at p. 108.) The court concluded the appellant
had not shown justification for relief from the default and dismissed the appeal. (Ibid.)
Designating exhibits as part of the record and ensuring they are delivered to the
reviewing court is part of the appellant’s burden of providing an adequate record for a
meaningful review of the errors claimed by the appellant. (DePonce v. System Freight
Service (1944) 66 Cal. App. 2d 295, 302.) Ordinarily, the appellant’s burden is met by
designating the exhibits as part of the record and having them transmitted to the appellate
court by the trial court clerk. In this case, however, more was required because the
exhibits could not be located by the trial court clerk.
In criminal cases, the court has indicated that, when original trial court exhibits are
unavailable, an attempt to reconstruct them for the appellate record must be made.
(People v. Coley (1997) 52 Cal. App. 4th 964, 970 (Coley).) “If they can be reconstructed,
the appellate court can review them as if they had not been lost, with no resulting
prejudice to the [appell]ant.” (Ibid.) In Coley, the appellant argued for reversal of his
conviction, not because the evidence presented at trial was insufficient, but because the
trial exhibits had been lost. (Id. at p. 968.) The court observed: “[R]eversal for
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insufficiency of evidence when exhibits are not available for appellate review is not now
and never has been the law.” (Id. at p. 969.) Reversing a judgment simply because
exhibits were lost, without attempting to reconstruct them, would violate the
constitutional requirement that judgments not be reversed in the absence of prejudice.
(Id. at p. 970.)
“Reconstruction of exhibits is essentially the same as preparing a settled statement
for unreported portions of trial proceedings .…” (Coley, supra, 52 Cal.App.4th at
p. 969.) “A settled statement is a summary of the superior court proceedings approved by
the superior court.” (Rule 8.137(a).) Generally, the appellant serves and files a proposed
statement, the respondent has an opportunity to respond with proposed amendments, and,
if there is a dispute, the superior court resolves it, then certifies the settled statement and
transmits it to the appellate court. (Rule 8.137(c), (e), (f), (g), (h).)
Thus, the burden was on appellants to attempt to locate the original exhibits,
which were apparently returned to the parties or their attorneys after the trial, or to
reconstruct the exhibits by locating copies of them the parties could agree (or the trial
court could determine) were accurate copies. Because the parties’ briefs must be based
on the information in the appellate record, the time to reconstruct the trial exhibits was
before the briefs were filed. The court clerk filed the declaration explaining the inability
to locate the original trial court exhibits on February 14, 2019. On June 18, 2019,
appellants, who had been representing themselves, filed a substitution of attorneys,
bringing an attorney into the case to represent them. Appellants’ attorney obtained five
extensions of time for filing the opening brief.2 The opening brief was filed on
November 5, 2019. Thus, from the time the court clerk filed her declaration, appellants
2 Before they retained appellate counsel, appellants also obtained five extensions of time to
file the opening brief.
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and their counsel had a total of almost nine months in which to attempt to reconstruct the
exhibits.
There is nothing in appellants’ opening brief indicating they made any effort to
locate or reconstruct the exhibits. Respondents’ brief indicates appellants’ counsel did
not contact respondents’ attorney to inquire about the exhibits; counsel spoke about other
matters, but appellants’ counsel never mentioned the missing exhibits.
There were 43 exhibits on the trial court’s exhibit list. We have reviewed the
reporter’s transcript of the trial. In it, the trial court and the parties discussed the original
and the first amended complaint and indicated there were multiple exhibits attached to
them (marked as exhibits A through X), which apparently included the five promissory
notes and deeds of trust in issue. Appellants could have reviewed the court file, or their
own files of pretrial pleadings and motions, to determine whether any of the pretrial
filings included copies of the same documents that became trial exhibits, which could
have been used to reconstruct the trial exhibits.
The reporter’s transcript also indicates the exhibits included a substantial number
of documents from the federal court files of the prior bankruptcy proceeding, of which
the trial court took judicial notice. Other exhibits were documents obtained from
businesses or public agencies, such as an appraiser, a real estate agent, potential lenders,
and the building department. Three of the exhibits were trial court orders that would
have been part of the trial court’s file. There is no indication appellants attempted to
obtain copies of any of those documents to reconstruct the exhibits.
In a case involving missing exhibits, while the trial court and the appellate court
remain available to assist the appellant in reconstructing the record, the laboring oar must
be manned by the appellant. It is the appellant who must determine which exhibits are
necessary to establish the claimed error. The appellant must, at the least, make a diligent
effort to determine (1) whether the trial exhibits themselves exist and who possesses
them, and (2) if they no longer exist or cannot be located, whether copies of the exhibits
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are available, which the parties (with or without the assistance of the trial court) can
present as accurate copies of the trial exhibits.
“Where exhibits are missing we will not presume they would undermine the
judgment.” (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal. App. 4th 278,
291.) Appellants bear the burden to show that deficiencies in the record are prejudicial to
them. (People v. Osband (1996) 13 Cal. 4th 622, 663.) Appellants have not demonstrated
that the exhibits could not be reconstructed. They also have not demonstrated that the
exhibits were needed for their appeal, that is, that appellants could not obtain meaningful
review of the judgment without them. Appellants’ opening brief baldly asserts that,
without the exhibits, appellants cannot have a meaningful appellate review. They have
not identified any error in the trial court proceedings. They have not explained the
relevance of the missing exhibits to any alleged error in the proceedings. They have not
demonstrated that the alleged error cannot be established without the exhibits.
Accordingly, we conclude appellants have not established any reversible error.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
HILL, P.J.
WE CONCUR:
FRANSON, J.
PEÑA, J.
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