Curtis v. Lavian CA2/3
B300553
| Cal. Ct. App. | Jun 22, 2021Background
- Plaintiffs Greta Curtis and Eric Radley sued Victoria Olshansky (and others) in Aug. 2017 for breach of contract, fraud, and negligence arising from a $950,000 commercial property sale; Curtis claims she was Radley’s assignee/co-buyer.
- Clerk records show a default against Olshansky was entered October 11, 2017; Olshansky nevertheless filed an answer and cross-complaint on October 24, 2017 and participated in case management conferences.
- A one-day bench trial was held July 10, 2019; the trial court, on its own motion, set aside and vacated the October 11, 2017 default and allowed Olshansky’s answer to stand.
- After testimony and motions, the court granted judgment for Olshansky, finding Curtis lacked standing; judgment was entered August 8, 2019 and the cross-complaint was dismissed without prejudice.
- Curtis appealed but elected to provide only a clerk’s transcript and no reporter’s transcript of the July 10 proceedings; she argued the court abused its discretion by setting aside default and that judgment did not dispose of all claims.
- The Court of Appeal affirmed, ruling the appellate record was inadequate to review Curtis’s claims and that the trial court had inherent authority to set aside the default on its own motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by setting aside clerk-entered default on its own motion | Curtis: court lacked authority; setting aside default was improper and prejudicial | Olshansky: even if default entered, Curtis failed to provide adequate record; court may set aside default on its own motion in appropriate circumstances | Court: affirmed — no adequate record to review alleged abuse; courts have inherent authority to set aside defaults and majority precedent supports that power |
| Whether judgment failed to dispose of all claims / whether appeal presents reviewable error given record | Curtis: judgment did not resolve all claims and errors occurred at trial | Olshansky: judgment disposed of Curtis’s claims; Curtis forfeited review by failing to provide reporter’s transcript | Court: affirmed — appellant must provide adequate record; without reporter’s transcript appellate court cannot assess claimed errors and must affirm |
Key Cases Cited
- Hernandez v. California Hospital Medical Center, 78 Cal.App.4th 498 (2000) (appellate judgments presumed correct)
- Denham v. Superior Court, 2 Cal.3d 557 (1970) (presumption of correctness on appeal)
- Maria P. v. Riles, 43 Cal.3d 1281 (1987) (appellant must provide adequate record to show error)
- Bianco v. California Highway Patrol, 24 Cal.App.4th 1113 (1994) (pro per litigants receive no greater appellate indulgence)
- Gee v. American Realty & Construction, Inc., 99 Cal.App.4th 1412 (2002) (inadequate record requires affirmance)
- Allstate Ins. Co. v. Fisher, 31 Cal.App.3d 391 (1973) (court may properly set aside default on its own motion)
- Stuart v. Alexander, 6 Cal.App.2d 27 (1935) (same)
- Remainders, Inc. v. Superior Court, 192 Cal.App.2d 411 (1961) (contrasting authority that a court cannot grant relief from default on its own motion)