Alexander v. Danco CA2/8

Filed 11/4/20 Alexander v. Danco CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
STEVE ALEXANDER, B296256
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC609321)
v.
DANCO INC., et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County, Joanne B. O’Donnell, Judge. Affirmed.
Samuel Ogbogu, Inc. and Samuel O. Ogbogu for Plaintiff
and Appellant.
No appearance by Defendants and Respondents.
_________________________
Steve Alexander appeals from the order dismissing this
action and the order denying his subsequent motion to vacate the
dismissal made pursuant to Code of Civil Procedure section 473,
subdivision (b).1 He contends the trial court erred prejudicially in
failing to explain the rationale for its ruling dismissing the action
as a sanction for his behavior and, in any event, abused its
discretion in dismissing the action as a sanction for his failure to
appear at one status conference hearing while he was self-
represented. He also contends the trial court did not understand
the requirements for relief under section 473 and abused its
discretion in denying relief under that section. We see no abuse
of discretion in the denial of the section 473 motion, and to the
extent we separately review the order, we affirm it. The record is
not adequate to permit appellate review of the order dismissing
the action and so the dismissal order is affirmed on that basis.
BACKGROUND
In February 2016, Alexander filed a complaint asserting
12 causes of action arising from an alleged 2015 wrongful
foreclosure of residential property in Los Angeles. On May 24,
2016, he filed a first amended complaint. On September 14,
2016, defendants filed a demurrer, with a hearing date of April 4,
2017. The demurrer was largely overruled. Defendants filed
their answer on May 15, 2017.
On August 25, 2017, the court held a case management
conference and issued a case management order and minute
order which set the case for a three- to five-day bench trial on
1 Further undesignated statutory references are to the Code
of Civil Procedure.
2
April 16, 2018. A final status conference was set for April 6,
2018. The court also referred the matter to mediation, and
scheduled a post-mediation status conference for January 11,
2018.
On August 30, 2017, Alexander’s attorneys filed a motion to
be relieved as counsel. The form motion and accompanying form
order both contain a prominent box entitled “NOTICE TO
CLIENT WHO WILL BE UNREPRESENTED.” This notice
states: “If this motion to be relieved as counsel is granted, you
will not have an attorney representing you. You may wish to
seek legal assistance. If you do not have a new attorney to
represent you in this action or proceeding, and you are legally
permitted to do so, you will be representing yourself. It will be
your responsibility to comply with all court rules and applicable
laws. If you fail to do so, or fail to appear at hearings, action may
be taken against you. You may lose your case.” (Italics added.)
On October 10, 2017, the trial court granted counsel’s
motion to be relieved. The order expressly stated: “The next
scheduled hearing in this action is a post-mediation status
conference set for 1/11/2018. Trial is not scheduled to commence
until 4/16/2018.” The trial court added: “The next hearing is set
in January 2018, three months away. Trial is six months away.
Plaintiff has ample time to retain new counsel, and can represent
himself in propria persona.”
The minute order for the post-mediation status conference
on January 11, 2018 shows no appearance by Alexander or any
counsel acting on his behalf. The order states: “Conference is
held. Counsel informs the Court that mediation did not take
place and plaintiff is now self-represented. [¶] No further notice
is necessary.”
3
At some point before April 5, 2018, Alexander again
retained his former attorneys. On April 5, 2018 counsel filed a
substitution of attorney form, and on April 6, 2018 they appeared
on behalf of Alexander at the final status conference. The
attorneys filed an exhibit list, witness list, and trial brief.
Alexander later filed a declaration stating that he came to the
courthouse with them, but was told to wait outside. The court’s
minute order for the conference states: “The Court sets an Order
to Show Cause re sanctions (payable to the Court), including
dismissal, against Plaintiff on May 7, 2018 at 8:30 a.m. in this
department. The Court requests counsel have plaintiff present at
the Order to Show Cause.” The final status conference and the
trial were continued to December 2018.
On April 9, 2018, Alexander and his attorneys filed a
substitution of attorney form showing that Alexander was now
representing himself.
On May 4, 2018, Alexander’s former attorney Stuart
Simone filed a declaration “Re: Order To Show Cause Re:
Sanctions Including Dismissal Against Plaintiff.” In the
declaration, Mr. Simone explained that “Mr. Alexander is a truck
driver by profession and was not in town very often. In fact he
was rarely in the state, and was often ‘on the road’ in various
Eastern states. Communication issues, among other things,
forced my firm to file the motion to be relieved as counsel.” He
further declared that after the court granted the motion, the firm
“immediately notified Mr. Alexander of the ruling, notified him of
case status and all upcoming hearings, and no longer monitored
the case docket or calendar.” He added: “Apparently, while Mr.
Alexander was representing himself, he missed at least one
hearing in this Court.”
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Mr. Simone also provided details about more recent past
events. He stated that his firm had agreed to represent
Alexander for trial. On April 6, 2018, the firm had filed an
exhibit list, witness list and trial brief” and Mr. Simone
“proceed[ed] to Department 74 for what [he] believed—and the
online Court Docket stated—was the Final Status Conference.”
Mr. Simone stated: “Unfortunately, I had no knowledge that Mr.
Alexander had missed at least one hearing and that the court had
set an OSC re dismissal for that date.” Mr. Simone attached a
copy of the online docket, which stated only “Completed” for the
January 22, 2018 date. Mr. Simone continued: “When I appeared
at what I believed was only a Final Status Conference, I had no
idea that Defendants’ counsel was not prepared for trial. I was
not making any attempt to ‘sandbag’ Defendants[] or their
counsel, I simply did not have all the information regarding the
status of the case.”
Mr. Simone explained that after the April 6, 2018
conference he met with Alexander and “advised Mr. Alexander of
the Court’s and Defendants’ counsel’s concerns, informed him of
the order to show cause hearing set for May 7, 2018, and
informed him that the trial was continued. [¶] . . .I further
advised him that given the events that had transpired while [my
firm] did not represent him, it would be best if he found new
counsel to represent him for the duration of the case if he wished
to continue to pursue it.”
By the time of the May 7, 2018 OSC hearing, Alexander
was represented by new counsel. There is no reporter’s
transcript of the hearing and no settled statement. The minute
order for the hearing states: “Order to Show Cause is held. The
Court hears from plaintiff and plaintiff’s new counsel. [¶]
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Having heard from all parties, the Court orders the case
dismissed without prejudice.”
Alexander filed a timely motion to vacate the dismissal
pursuant to section 473, subdivision (b). The motion was denied.
This appeal followed.
DISCUSSION
Alexander appeals from the denial of his motion to vacate
the dismissal, and also the dismissal order itself. He contends
the denial of the motion to vacate the dismissal is appealable; the
trial court abused its discretion in denying that motion; and the
trial court abused its discretion in the first instance when it
dismissed the action. We consider these issues in the order
raised by Alexander.
A. The Denial of the Section 473 Motion Is Appealable.
As a general rule, “the denial of a motion to vacate is not
appealable unless direct appeal from the dismissal order would
be relatively ineffectual. [Citation.] An appeal from a dismissal
order would be ineffectual where the plaintiff has failed to
present an opposition, where hitherto unknown facts have come
to light, or due to other unforeseen circumstances the record
arising out of the dismissal hearing is deficient in presenting an
inadequate factual record for appeal purposes. In such a
situation, where subsequent information has been brought forth
during the motion to vacate, the denial of that motion is
appealable.” (City of Los Angeles v. Gleneagle Dev. Co. (1976)
62 Cal.App.3d 543, 553.) Alexander contends he provided new
facts to cure an inadequate factual record concerning the
dismissal order as part of his motion to vacate and so the denial
of the motion is appealable. We agree.
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The record concerning the dismissal hearing is inadequate
for appellate review. We question whether that deficiency can be
attributed to “unforeseen circumstances.” Alexander does not
explain his failure to request that a court reporter be present for
such a crucial hearing or to provide any evidence that he
attempted to obtain a settled statement of the proceedings in lieu
of a reporter’s transcript. There was no written opposition to the
OSC, and Alexander does not provide a declaration from his new
attorney demonstrating the basis of the verbal opposition.
Alexander did submit a declaration in support of the
motion to vacate in which he states his former law firm failed to
give him copies of his files during the period between October
2017 when it was relieved as counsel through April 9, 2018 when
the law firm substituted out of the case. Alexander declared:
“Hence, I had no documentations regarding the case and not
papers to make any form of reference.” Alexander also declared
that he came to the courthouse with his former attorneys on April
6, 2018, and was instructed to wait outside the courtroom. He
therefore “had no [direct] knowledge of what transpired inside
the courtroom.” Alexander also stated that he “did not receive
any Order to Show Cause re sanctions for my failure to appear on
January 11, 2018.” These facts are not found in the attorney
declaration submitted in connection with the May 2018 hearing
on the OSC. Thus, Alexander did submit what appears to be new
facts in connection with the motion to vacate, and we will
consider his appeal.
B. The Trial Court Did Not Abuse Its Discretion in Denying
the Section 473 Motion
A motion to vacate under section 473, subdivision (b) is
addressed to the sound discretion of the trial court. “ ‘The
7
appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason.’ [Citations.] However, ‘[b]ecause
the law favors disposing of cases on their merits, “any doubts in
applying section 473 must be resolved in favor of the party
seeking relief from default [citations]. Therefore, a trial court
order denying relief is scrutinized more carefully than an order
permitting trial on the merits.” ’ ” (Austin v. Los Angeles Unified
School Dist. (2016) 244 Cal.App.4th 918, 929 (Austin).)
A plaintiff whose case has been dismissed may “seek
redress through a motion to vacate pursuant to section 473 of the
Code of Civil Procedure where, through mistake, surprise,
inadvertence, or excusable neglect, he has failed to make the
showing he could have made at the hearing on the motion.” (City
of Los Angeles v. Gleneagle Dev. Co., supra, 62 Cal.App.3d at
p. 553.) Thus, as the trial court correctly recognized, the focus of
a section 473 motion is on a plaintiff’s “failure to make a full and
complete opposition to the dismissal motion.” (Williams v. Los
Angeles Unified School Dist. (1994) 23 Cal.App.4th 84, 105
(Williams) [“The motion itself improperly requested relief from
the original default in serving the summons and complaint and
did not allege any default in responding to the motion to dismiss
because none had occurred.”].)
We will treat Alexander’s claim that he was trying to
present his side of the story through the section 473 motion as a
claim that the new facts in his declaration show that the
dismissal was an abuse of discretion.
Those new facts establish that Alexander was not aware
that the April 6, 2018 hearing was intended to be a hearing on an
OSC re: sanctions. The trial court, however, did not proceed with
the OSC on that date. Alexander had another month to prepare
8
for the OSC hearing. He does not declare that his former
attorneys continued to withhold his file after they substituted out
on April 9, 2018 and does not declare that his former attorneys
failed to accurately communicate the contents of the April 6, 2018
hearing to him in a timely manner.
Alexander does provide an excuse for failure to appear at
the January hearing. He blames it on the lack of the file and also
his failure to understand that he was required to appear. As the
trial court correctly recognized, however, Alexander did not
provide admissible evidence of the reason for the trial court’s
order of dismissal. The closest Alexander came was the following
statement in his declaration: “I did not receive any Order to
Show Cause re sanctions for my failure to appear on January 11,
2018.” This, of course, is not proof of what transpired at the May
7, 2018 hearing, or that the trial court dismissed the action solely
because Alexander missed that hearing.
Proof of what transpired at that hearing would ordinarily
be provided by a reporter’s transcript. “Generally, appellants in
ordinary civil appeals must provide a reporter’s transcript at
their own expense. [Citation.] In lieu of a reporter’s transcript,
an appellant may submit an agreed or settled statement.” (Foust
v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th
181, 186 (Foust).) Alexander did not provide either a transcript
or a settled statement. 2
2 The minute order for the hearing does show that the trial
court ordered defendants to give notice of its ruling. Alexander
claims they failed to do so, but Alexander took no steps of his own
to obtain a written ruling which might have provided the reason
for the dismissal.
9
Absent evidence of the reason for the court’s order of
dismissal, Alexander’s explanation of why he missed a particular
hearing is not relevant. “[T]he moving party bears the burden of
establishing a right to relief.” (Austin, supra, 244 Cal.App.4th at
p. 928.) Alexander has not carried that burden and we therefore
cannot find that the trial court abused its discretion.
Further, even assuming for the sake of argument that this
action was dismissed in whole or in part based on Alexander’s
failure to appear at the January 2018 status conference,
Alexander does not contend that he was unable to offer to the
dismissing court the same explanation that he offered to the
section 473 court: he did not understand he was required to
appear. Even further assuming that he was unable to tell the
dismissing court about his lack of access to his files due to the
presence of his former attorneys, Alexander’s duty to appear was
not dependent on those files. As set forth above, Alexander had
notice through the proceedings relieving his counsel that a
hearing was scheduled for January 11, 2018, that he was
required to comply with court rules and that if he failed to appear
for a hearing, action could be taken against him. The
unavailability of the files at most appears to “amplify or
supplement the evidence and arguments that were presented in
opposition to the original motion to dismiss,” which is not a
proper use of a section 473 motion. (Williams, supra,
23 Cal.App.4th at p. 105.)
C. Appellant Has Failed to Provide an Adequate Record for
Appellate Review and So the Dismissal Order Must Be
Affirmed.
Alexander also contends the trial court erred in dismissing
the case. He contends the order must be reversed because 1) the
10
trial court erred prejudicially when it failed to explain its
reasoning in writing; 2) assuming the trial court dismissed for
failure to prosecute, that would be an abuse of discretion because
the case was less than 3 years old and the trial court did not
make findings required by California Rule of Court 3.1342; and
3) assuming the trial court dismissed for the potentially improper
litigation conduct of rehired counsel’s “sandbagging” of the
defendants at the final status conference, dismissal would be
“utterly disproportionate” to the perceived misconduct which
could be cured by continuing the trial date and so the trial court
abused its discretion.
“[T]he trial court was not required to issue a statement of
decision. (See Mechanical Contractors Assn. v. Greater Bay Area
Assn. (1998) 66 Cal.App.4th 672, 678 [78 Cal.Rptr.2d 225] [‘The
general rule is that a trial court need not issue a statement of
decision after a ruling on a motion’]; see also Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1294 [240 Cal.Rptr. 872, 743 P.2d 932].)”
(In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1497
[concerning statement of decision when awarding attorney fees as
monetary sanctions].)
The trial court may well have explained its ruling at the
hearing on the OSC. It was Alexander’s duty to ensure there was
a record of that hearing, but, as we have previously explained, he
did not do so. (See Foust, supra, 198 Cal.App.4th at p. 186.)
Even in the absence of an express statement at the hearing,
events at the hearing might well have explained the ruling. The
trial court referred to “sanctions (payable to the Court), including
dismissal” in its April 6, 2018 minute order setting the hearing,
but after the hearing took place, the court selected the ultimate
sanction of dismissal. This shift certainly suggests evidence
11
offered or argument made at the hearing influenced the trial
court’s ruling.
“[T]he absence of a court reporter at trial court proceedings
and the resulting lack of a verbatim record of such proceedings
will frequently be fatal to a litigant’s ability to have his or her
claims of trial court error resolved on the merits by an appellate
court. This is so because it 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.’ [Citations.] ‘In the
absence of a contrary showing in the record, all presumptions in
favor of the trial court’s action will be made by the appellate
court. “[I]f any matters could have been presented to the court
below which would have authorized the order complained of, it
will be presumed that such matters were presented.” ’ [Citation.]
‘ “A necessary corollary to this rule is that if 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
(Jameson).)
As the Supreme Court pointed out in Jameson, the court in
Foust “extensively catalogued the frequency with which appellate
courts have declined to reach the merits of a claim raised on
12
appeal because of the absence of a reporter’s transcript. The
court in Foust stated: ‘In numerous situations, appellate courts
have refused to reach the merits of an appellant’s claims because
no reporter’s transcript of a pertinent proceeding or a suitable
substitute was provided.’ ” (Jameson, supra, 5 Cal.5th at p. 609.)
In particular, “[t]he absence of a record concerning what actually
occurred at the hearing precludes a determination that the court
abused its discretion. [Citations.] [The] party challenging a
discretionary ruling [has] an affirmative obligation to provide an
adequate record so that we could assess whether the court abused
its discretion.” (Wagner v. Wagner (2008) 162 Cal.App.4th 249,
259.)
To the extent we consider the issue at all, we note that it is
undisputed that Alexander missed at least one hearing. That
hearing came at a crucial point in the progress of the case, after
the deadline for mediation had passed and the case was about to
return to the active list. He did not appear in court for almost
another three months after that missed hearing, and there is
nothing to suggest he communicated to the court or opposing
counsel during that time. Thus, Alexander effectively vanished
from the case in the months before trial was scheduled to take
place. This alone would be enough to support a dismissal.3 There
is nothing contrary in the record to rebut the presumption that
3 We note there are indications in the record that Alexander
committed other improprieties. Former counsel’s use of the
modifier “at least one” hearing suggests there were other possible
missed hearings. Defense counsel’s apparent accusation of “sand-
bagging” at the April 6, 2018 hearing suggests there was a
further failure of Alexander to comply with other court rules,
requirements or deadlines, or to hide some activities.
13
the trial court’s order is correct. We certainly cannot conclude
the trial court abused its discretion from this limited record.
DISPOSITION
The order of dismissal and the order denying the section
473 motion are affirmed. Respondent did not appear; no costs are
ordered. Appellant is to bear his own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
WILEY, J.
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