Meseonzhnik v. Dovzhenko CA2/7

Filed 8/17/20 Meseonzhnik v. Dovzhenko CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
ALEX MESEONZHNIK, B297633
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC645235)
v.
ORDER MODIFYING OPINION;
VSEVOLOD DOVZHENKO, NO CHANGE IN APPELLATE
JUDGMENT
Defendant and Appellant.
THE COURT:
The opinion filed on July 27, 2020 and not certified for
publication, is modified as follows:
The language below shall be inserted on page 10 as the last
paragraph of the Discussion section:
“Contrary to the assertion in Dovzhenko’s petition for
rehearing, California Rules of Court, rule 2.259(c) does not apply.
That rule provides: “If a technical problem with the court’s
electronic filing system prevents the court from accepting an
electronic filing on a particular court day, and the electronic filer
demonstrates that he or she attempted to electronically file the
document on that day, the court must deem the document as filed
on that day.” Dovzhenko did not submit evidence or ever advise
the trial court there was a technical problem with the court’s
electronic filing system. Nor does he argue there was a such a
technical problem. To the contrary, the evidence shows there was
no technical problem. According to Dovzhenko, he submitted the
request for a statement of decision and an objection to the
proposed judgement “virtually simultaneously” on March 8, 2019,
with the objection “filed” three minutes after the request was
“received.” Further, although Dovzhenko acknowledges that the
request for a statement of decision “was later returned from the
Clerk’s Office,” he failed to take corrective action to have the
request filed. Under rule 2.259(a)(4), Dovzhenko was
“responsible for verifying that the court received and filed any
document that the electronic filer submitted to the court
electronically.”
Appellant’s petition for rehearing is denied.
This order does not change the appellate judgment.
____________________________________________________________
PERLUSS, P. J. SEGAL, J. DILLON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
2
Filed 7/27/20 Meseonzhnik v. Dovzhenko CA2/7 (unmodified opinion)
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 SEVEN
ALEX MESEONZHNIK, B297633
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC645235)
v.
VSEVOLOD DOVZHENKO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Gregory Keosian, Judge. Affirmed.
Baranov & Wittenberg and Michael M. Baranov for
Defendant and Appellant.
Law Office of Robert Gentino, Robert Gentino and Sherri
Matta for Plaintiff and Respondent.
__________________________
Vsevolod Dovzhenko appeals from a judgment entered
against him in a breach of contract action. Dovzhenko argues the
trial court erred in failing to issue a statement of decision
following a bench trial despite his timely request. He also asserts
the court abused its discretion in denying an ex parte application
seeking to vacate the judgment based on the lack of a statement
of decision. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. The Trial Court Enters Judgment After a Bench Trial
On December 29, 2016, Alex Meseonzhnik filed a civil
complaint against Dovzhenko, alleging a single cause of action for
breach of a promissory note. The case was tried in a bench trial
over a three-day period, commencing on the afternoon of January
23, 2019, continuing on the afternoon of January 24, and
concluding on the morning of January 25. The parties did not
employ a court reporter for the trial. Following closing
arguments, the trial court took the matter under submission.
On February 26, 2019, the trial court signed a “proposed
judgment” in favor of Meseonzhnik and, on the same day, the
clerk filed and served by mail the proposed judgment. The
proposed judgment stated, “A statement of decision not being
requested pursuant to [Code of Civil Procedure section] 632 and
[California Rules of Court, rule] 3.1590, the court, upon a trial on
the merits, after hearing testimony of both Plaintiff and
Defendant, and on a review of the evidence submitted, and on the
arguments of counsel, finds for Plaintiff and against Defendant in
the amount of $80,000 with interest, as well as costs and fees
pursuant to the promissory note. [¶] Parties may within 10 days
after service of this proposed judgment, serve and file objections
4
thereto.”
On March 8, 2019, Dovzhenko served and electronically
filed with the court an objection to the proposed judgment in
which he stated that the judgment was premature because the
court had not issued a statement of decision. On the same day,
Dovzhenko served and submitted for electronic filing a “Request
for a Statement of Decision.” The court’s electronic filing system
placed an electronic stamp on the left margin of the request’s
cover page, which stated: “Electronically Received 03/08/2019
11:56.” However, for unknown reasons, the request for a
statement of decision was not electronically filed with the court.
Dovzhenko’s request was not shown in the “case information” on
the trial court’s website.
On March 13, 2019, Meseonzhnik filed a response to
Dovzhenko’s objection to the proposed judgment. Meseonzhnik
stated that the objection “failed to ‘request a statement of
decision to address the principal controverted issues’ and failed
to specify any principal controverted issues within ten days as
required by [California Rules of Court] rule 3.1590(d).”
On March 13, 2019, the trial court entered a judgment in
favor of Meseonzhnik and against Dovzhenko on Judicial Council
Form JUD-100. The judgment contained checked boxes
indicating that a statement of decision was not requested.
Meseonzhnik served Dovzhenko with notice of entry of judgment
on March 15, 2019. Based on the judgment, on April 4, 2019, the
clerk filed a writ of execution to enforce the judgment.
B. Dovzhenko’s Ex Parte Application
On April 30, 2019, Dovzhenko filed an ex parte application
to vacate the judgment and quash the writ of execution, or in the
alternative, to shorten the time to hear a motion for such relief.
5
In his application, Dovzhenko argued, “[d]espite a timely request
for a statement of decision and an objection to the proposed
judgment, no statement of decision was issued, and judgment
was entered based on a non-binding tentative decision.”
Dovzhenko acknowledged that “the new electronic filing system
processed the Request for Statement of Decision as ‘Received,’
while processing the Objection to the Proposed Judgment as
‘Filed.’” Dovzhenko’s ex parte application did not state whether
the court transmitted a notice of rejection for his request.1
Although Dovzhenko did not attach a confirmation from the
electronic filing system showing that the request was filed, he
maintained that he had “electronically filed” the document on
March 8, 2019. Dovzhenko also asserted that he was entitled to
relief on an ex parte basis because the deadline to file an appeal
from the judgment was approaching, and there was insufficient
time for him to request that the court vacate the judgment
through a regularly noticed motion.
In his opposition, Meseonzhnik contended that Dovzhenko
had not shown good cause for ex parte relief because Dovzhenko
had waited seven weeks after the entry of judgment to seek
relief from his own failed attempt to file a request for statement
of decision. Meseonzhnik also claimed that granting Dovzhenko’s
application would reward his act of “gamesmanship” because
Dovzhenko had strategically delayed in seeking to vacate the
judgment to obtain “ex parte release of levied funds to enable
[Dovzhenko] to empty the account and conceal the funds.”
1 Dovzhenko states in his opening brief that “[a] copy [of the
request for a statement of decision] was later returned from the
Clerk’s Office.”
6
On April 30, 2019, following a hearing, the trial court
issued a minute order denying Dovzhenko’s ex parte application.
Dovzhenko timely appealed from the judgment.2
DISCUSSION
A. Applicable Law
Code of Civil Procedure3 section 632 provides: “In superior
courts, upon the trial of a question of fact by the court, written
findings of fact and conclusions of law shall not be required. The
court shall issue a statement of decision explaining the factual
and legal basis for its decision as to each of the principal
controverted issues at trial upon the request of any party
appearing at the trial. The request must be made within 10 days
after the court announces a tentative decision unless the trial is
concluded within one calendar day or in less than eight hours
over more than one day in which event the request must be made
prior to the submission of the matter for decision.” (§ 632; see
also Cal. Rules of Court, rule 3.1590(d), (n).)
“A statement of decision gives the trial court ‘an
opportunity to place upon [the] record, in definite written form,
2 On October 31, 2019, the same day that Meseonzhnik filed
his brief in this court, the trial court purported to issue an order
denying Dovzhenko’s request for a statement of decision because
the trial lasted “7.35 hours” and Dovzhenko did not request a
statement of decision “prior to the submission of the case.” The
trial court did not have jurisdiction to issue this order. (See Code
Civ. Proc., § 916, subd. (a).) Accordingly, we deny Meseonzhnik’s
request to augment the record to include this order.
3 All further statutory references are to the Code of Civil
Procedure.
7
its view of the facts and the law of the case, and to make the case
easily reviewable on appeal by exhibiting the exact grounds upon
which judgment rests.’ [Citation.] ‘If a statement of decision is
given, it provides us with the trial court’s reasoning on disputed
issues and “is our touchstone to determine whether or not the
trial court’s decision is supported by the facts and the law.”’”
(A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1282, italics omitted.)
A party is entitled to a statement of decision if he or she makes a
timely request and specifies the principal controverted issues to
be addressed by the court. (§ 632; Cal. Rules of Court, rule
3.1590(d).) If, however, the parties fail to request a statement of
decision, the court is not required to provide one. (Nellie Gail
Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 996;
Acquired II, Ltd. v. Colton Real Estate Group (2013) 213
Cal.App.4th 959, 970.)
B. The Trial Court Did Not Err in Not Issuing a
Statement of Decision
Premised on the trial lasting eight hours or more,
Dovzhenko argues that the trial court erred in failing to issue a
statement of decision because the court served the proposed
judgment on February 26, 2019, and he timely “submitted” a
request for a statement of decision on March 8, 2019.4
Meseonzhnik, on the other hand, contends that Dovzhenko
cannot establish that his request was timely because, absent an
4 Where, as here, the trial court’s decision on a submitted
matter was served on the parties by mail, the 10-day time limit
for requesting a statement of decision is extended by an
additional five days pursuant to section 1013, subdivision (a).
(Kroupa v. Sunrise Ford (1999) 77 Cal.App.4th 835, 841; Staten v.
Heale (1997) 57 Cal.App.4th 1084, 1090.)
8
affirmative showing that the trial exceeded eight hours,
Meseonzhnik had to request a statement of decision prior to the
submission of the case for decision. We need not decide whether
Dovzhenko established that the duration of the trial was eight
hours or more because Dovzhenko has not shown that he timely
made a request for a statement of decision regardless of the
trial’s length.5
Where an issue involves the application of law to
undisputed facts, we review the matter independently. (See
Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898,
912 [“[i]t is true that the application of law to undisputed facts
ordinarily presents a legal question that is reviewed de novo”];
Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014,
1018; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 801.)
“A party’s entitlement to a statement of decision depends
on the party making a timely request.” (Gorman v. Tassajara
5 According to the minute orders, the trial commenced with
opening statements at 1:30 p.m. on January 23, 2019. (§ 581,
subd. (a)(6) [“[t]rial shall be deemed to actually commence at the
beginning of the opening statement . . . ”].) Trial resumed on
January 24 at 1:30 p.m., with the concluding trial session
beginning on January 25 at 10:00 a.m. However, the minute
orders do not state when the sessions concluded. (See generally
In re Marriage of Gray (2002) 103 Cal.App.4th 974, 979-980) [“the
eight-hour rule in section 632 requires a simple and obvious mode
of timekeeping that everyone, including attorneys, can keep track
of. This means that, for purposes of keeping time of trial under
section 632 in civil proceedings . . . the time of trial means the
time that the court is in session, in open court, and also includes
ordinary morning and afternoon recesses when the parties
remain at the courthouse”].)
9
Development Corp. (2009) 178 Cal.App.4th 44, 61.) “A request for
statement of decision calls on the trial court to act. Such a
request cannot reasonably be deemed accomplished until the
court knows what is requested.” (Staten v. Heale, supra, 57
Cal.App.4th at p. 1090.)
Los Angeles County Court Rules, rule 3.4(a), titled
“Mandatory Electronic Filing” provides, “Pursuant to the
operative General Order re Mandatory Electronic Filing for Civil
(‘General Order’), represented parties in civil actions must file
documents electronically, unless the court exempts parties from
doing so.” California Rules of Court, rules 2.250 through 2.261
set forth the procedures governing the electronic filing and
service of documents. Under rule 2.259(a)(1), “[w]hen a court
receives an electronically submitted document, the court must
promptly send the electronic filer confirmation of the court’s
receipt of the document, indicating the date and time of receipt.”
“If the document received by the court . . . complies with filing
requirements and all required filing fees have been paid, the
court must promptly send the electronic filer confirmation that
the document has been filed. The filing confirmation must
indicate the date and time of filing and is proof that the
document was filed on the date and at the time specified.” (Cal.
Rules of Court, rule 2.259(a)(2.) In addition, “[t]he court’s
endorsement of a document electronically filed must contain the
following: ‘Electronically filed by Superior Court of California,
County of __________, on _____ (date),’ followed by the name of
the court clerk.” (Cal. Rules of Court, rule 2.259(d)(1).)
“In the absence of the court’s confirmation of receipt and
filing, there is no presumption that the court received and filed
the document.” (Cal. Rules of Court, rule 2.259(a)(4).) “The
10
electronic filer is responsible for verifying that the court received
and filed any document that the electronic filer submitted to the
court electronically.” (Ibid.) Finally, rule 2.259(b) provides, “If
the clerk does not file a document because it does not comply with
applicable filing requirements or because the required filing fee
has not been paid, the court must promptly send notice of the
rejection of the document for filing to the electronic filer.”
Dovzhenko contends that he made a request for a
statement of decision through his March 8 submission on the
trial court’s electronic filing system.6 However, Dovzhenko has
failed to show that he filed a request for a statement of decision
with the trial court within the 10-day period required by section
632 for a trial greater than eight hours. Although Dovzhenko
electronically submitted a request for filing through the court’s
electronic filing system, there was no indication that the
document had been filed. Dovzhenko’s request was stamped,
“Electronically Received,” but there was no rule 2.259(d)(1)
endorsement on the document that it had been “electronically
filed” by the court clerk. Dovzhenko also did not submit the
court’s confirmation that the document had been filed. The “case
information” on the court’s website does not contain an entry for
Dovzhenko’s request for a statement of decision, much less one
showing the request was filed. There is nothing in the record to
suggest that, at the time the trial court entered the March 13,
2019 judgment in favor of Meseonzhnik, the court was aware that
Dovzhenko had tried, but failed, to file a request for a statement
of decision.
6 Dovzhenko does not argue that his March 8, 2019 objection,
which was filed, constituted a request for a statement of decision.
11
Given that the absence of the court’s filing confirmation,
under rule 2.259(a)(4), there was no presumption that Dovzhenko
filed the request. Further, under rule 2.259(a)(4), Dovzhenko
was responsible for verifying that the court filed the request he
had submitted. Under these circumstances, Dovzhenko has not
shown that he timely made his request for a statement of
decision within the 10-day statutory period. Because
Dovzhenko’s request was untimely, the trial court was not
required to issue a statement of decision. (See Staten v. Heale,
supra, 57 Cal.App.4th at p. 1086-1087, 1090 [rejecting argument
that request for statement was “made” when mailed to court;
request for decision “made” when filed in the trial court because
“[s]uch a request cannot be reasonably deemed accomplished
until the court knows what is requested”]; In re Marriage of
McDole (1985) 176 Cal.App.3d 214, 219 [“[h]er request [for a
statement of decision] was mailed on September 14, and filed on
September 15, within 15 days of September 1 and was therefore
timely”].)7
7 Dovzhenko argues that the trial abused its discretion in
denying his ex parte application seeking to vacate the judgment
on nonstatutory grounds. However, Dovzhenko did not file a
notice of appeal from the trial court’s April 30, 2019 order
denying his ex parte application.
12
DISPOSITION
The judgment is affirmed. Meseonzhnik shall recover his
costs on appeal.
*
DILLON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
13