Gerard v. CuevasGerard v. Cuevas
APPEAL from a judgment of the Superior Court of Los Angeles County, Victor M. Acevedo, Commissioner. Reversed.
BASTA, Inc., Daniel J. Bramzon and Eric Post for Defendant and Appellant.
Law Offices of Liddle & Liddle, Raymond Zakari, Layne Liddle and George Liddle, Jr. for Plaintiff and Respondent.
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BACKGROUND
On May 31, 2024, plaintiff filed an unlawful detainer action against defendant and Jorge H. Cuevas,3 seeking possession of a single-family residence in the City of Covina. The complaint alleged that on or about November 1, 2022, the parties executed a written agreement in which defendant leased the premises for rent of $3,600 per month. The lease converted into a month-to-month tenancy on the same terms after expiration of the one-year written lease. On April 26, 2024, defendant was served by a registered process server, using substitute service, with a three-day notice to pay past-due rent or quit the premises. Defendant failed to tender the unpaid rent and continued in possession after expiration of the notice period. Plaintiff
In a first-amended answer, defendant generally and specifically denied each allegation in the complaint and asserted numerous affirmative defenses, including breach of the warranty of habitability, estoppel, waiver, bad faith, no breach of covenant, defective notice, violation of the Los Angeles County Rent Stabilization Ordinance, and other miscellaneous affirmative defenses. Defendant also demanded a jury trial.
On July 30,4 the court issued a notice for a non-jury trial scheduled for August 21. The jury trial was rescheduled to commence on October 21. On October 18, the defense filed a witness list indicating its intent to call numerous witnesses, including defendant. Also on that date, at 3:24 p.m., plaintiff filed and served by email a “Notice to Attend Trial” demanding defendant’s attendance as a witness at the October 22 trial. The Notice was not accompanied by an order shortening the time to appear. (See
The following morning, the court discussed pre-trial matters with counsel but the Notice was not addressed. Voir dire commenced that afternoon. A minute order of the afternoon proceeding had an entry stating, “Plaintiff’s Counsel’s oral Motion to Strike the Answer based on the Defendant’s failure to appear [wa]s heard, argued, and taken under submission,” but there is no record of the oral proceedings at this hearing.
The next morning, on October 23, plaintiff announced, “I’m renewing my motion relative to our notice to appear”—referring to the motion to strike the answer made in the afternoon of October 22. Plaintiff argued the court had discretion, under
Defense counsel reiterated the notice was filed on Friday, the statute requires at least 10 days’ notice unless ordered by the court, and the court had not ordered her to appear on shortened notice. Before taking a recess at 11:59 a.m., the court ordered defendant to appear at the 1:30 p.m. hearing. The case was called 94 minutes later. Defendant was not in attendance. The defense planned to call as its trial witnesses the property manager, the process server, and plaintiff. The court found defendant failed to comply with the Notice and invited arguments on an appropriate sanction.
Defense counsel insisted that striking the answer was unwarranted, and urged the court to exhaust any other remedies, such as a monetary sanction or an evidentiary sanction. The defense alternatively urged the court to strike only the “portions of the answer related to the defendant not being here like her affirmative defenses . . . .”
Plaintiff argued that a monetary sanction would be “pointless” and also asserted that an evidentiary sanction would be meaningless because plaintiff, who had the burden of proof at trial, intended to call defendant as part of his case in chief. However, plaintiff did not specify what testimony he sought to elicit from defendant.
The defense replied: “Your honor didn’t make an order yesterday. Your honor took it under submission and said that we would deal with the [N]otice and the timeliness of the [N]otice today. [¶] So in effect, what’s happening is your honor made an order today for the
The court commenced a prove-up hearing, wherein counsel called plaintiff and Boa Am Ly as his only witnesses.5 The court overruled defendant’s objections to the admission of plaintiff’s exhibits, other than the lease, as inadmissible hearsay and lacking foundation. The court asked defense counsel, “Anything from you[?]” Counsel replied that his hands were tied because the answer was stricken. Judgment was entered in favor of plaintiff and against defendant for possession of the premises, forfeiture of the lease, and past-due rent and holdover damages totaling $28,010.6
Defendant maintains the trial court erred as a matter of law, and abused its discretion under
Adequacy of the Record on Appeal
An appealed judgment is presumed correct and the burden is on the appellant to demonstrate reversible error by providing an adequate record on appeal. (Hernandez v. Cal. Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) This obligation requires the appellant to provide a record of the oral proceedings from any trial proceeding relevant to the issues raised on appeal. (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574; Cal. Rules of Court, rule 8.830(a)(2).) We presume the record contains all matters necessary to adjudicate the appeal. (Cal. Rules of Court, rule 8.830(b); Berg v. Investors Real Estate Loan Co. (1962) 207 Cal.App.2d 808, 813.) Error will not be found on a silent record. (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955.)
Defendant’s notice designating the record on appeal requested transcripts from official electronic recordings of all trial proceedings between October 21 and October 23. On March 7, 2025, the trial court clerk transmitted the completed record on appeal to this court, which included six volumes of transcripts. The transcripts include the morning and afternoon sessions on October 22, but there is no record of proceedings concerning plaintiff’s oral motion to strike defendant’s answer. On March 28, 2025, defense counsel submitted a letter of omission to the civil appeals unit of the trial court explaining that the October 22 transcript: “appears to omit necessary proceedings. On the afternoon of that day, . . . the court and the attorneys discussed an issue related to the absence of [d]efendant, where the [p]laintiff sought to strike her answer.
On April 18, 2025, the clerk of the appellate division received a supplemental transcript of the October 22 proceedings which was a duplicate of the previously-filed transcript that did not include the omitted proceeding. Another supplemental transcript was received by this court on May 2, 2025, after defendant filed an opening brief. Again, however, this transcript does not include a record of plaintiff’s oral motion to strike the answer. Defendant did not file a motion to augment the record on appeal (Cal. Rules of Court, rule 8.841(c)(2)), and she did not elect to use a statement on appeal as a substitute for the missing transcript or seek an order for the court to settle the omission in the record (Cal. Rules of Court, rule 8.835(a)(1)(B), (b)(2)).
The presumption that unreported proceedings would support the judgment does not apply when, as in this case, all the relevant proceedings related to the alleged error are contained in the record before this court. (See Utz v. Aureguy (1952) 109 Cal.App.2d 803, 806-807.) According to the October 22 minute order and the October 23 transcript, the unrecorded proceeding was limited to plaintiff’s oral motion to strike the answer and argument from the parties. The October 23 transcript contains a summary from counsel and the court regarding what occurred during the unrecorded October 22 proceeding. It was undisputed the court did not rule on the motion to strike and did not reduce the 10-day deadline for service of the Notice at this hearing. The argument of counsel would be of little value considering that the court did not make any order during the unreported hearing. Under these narrow circumstances, we find the record is adequate to assess defendant’s claims of error.
Prescribing a Shorter Time for Service of the Notice Under Section 1987
Defendant contends the court abused its discretion by shortening the time for service of the Notice to the same day that her appearance was due. We review for an abuse of discretion
A civil court has no inherent power to order a represented defendant to appear in court, except as a witness. (Cohen v. Hughes Markets, Inc. (1995) 36 Cal.App.4th 1693, 1700; Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1008; see
In the case sub judice, the jury trial was scheduled to commence on October 21 (a Monday). Plaintiff, who did not subpoena defendant to secure her appearance at trial, filed the Notice and served it upon defendant’s counsel by email in the late afternoon of October 18 (a Friday), without obtaining an order shortening the time to appear. The Notice instructed defendant to appear for trial as a witness on October 22. At the October 21 hearing, the parties announced they were ready to proceed, and a panel of prospective jurors was ordered for the following day. Neither party addressed the Notice at this hearing. The next day, on October 22, voir dire commenced at 1:30 p.m. Defense counsel made an appearance but defendant was not in attendance. Plaintiff orally moved to strike the answer due to defendant’s failure to appear as a witness as instructed in the October 18 Notice. This session was unreported, but it is undisputed the court did not prescribe a shorter time for the notice to appear before voir dire commenced.
On October 23, voir dire reconvened at 11:18 a.m. and was completed after 38 minutes. Plaintiff renewed the motion to strike the answer due to defendant’s failure to comply with the Notice, averring he was at a disadvantage in selecting a jury without defendant’s presence. Plaintiff did not give any reason for his failure to subpoena defendant or seek an order
Until 11:59 a.m. on October 23, the court had not actually exercised its authority under
Moreover, the order to appear on 91 minutes’ notice was an abuse of the court’s discretion.
“Although the courts have defined ‘good cause’ in a variety of contexts, the concept is relative and depends on all the circumstances. [Citation.] It may be based on any matter relevant to the determination. As a general rule, however, ‘good cause’ includes reasons that are fair, honest, in good faith, not trivial, arbitrary, capricious, or pretextual, and reasonably related to legitimate needs, goals, and purposes. [Citation.] In determining the meaning of ‘good cause’ in a particular context, the courts utilize common sense based upon the totality of the circumstances.” (Laraway v. Sutro & Co., Inc. (2002) 96 Cal.App.4th 266, 274.) A good cause determination is reversible only for an abuse of discretion. (See id. at p. 273.)
By any standard, shortening the time for defendant’s appearance to 91 minutes was an unreasonable and capricious abuse of the court’s discretion. This rush to compel defendant’s appearance, which was not supported by an explanation for plaintiff’s counsel’s failure to subpoena defendant or timely serve the Notice, violated defendant’s due process rights by failing to afford her a reasonable opportunity to be heard. (See, e.g., O’Brien v. Cseh (1983) 148 Cal.App.3d 957, 961-962 [imposition of sanctions on one day’s notice by telephone “was a flagrant violation of due process principles”]; see also In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, 1128-1129 [trial court erred by setting an order to show cause on shortened notice, without a showing of good cause].) Because the order shortening time was invalid, so too was the resulting sanction. (See, e.g., Duggan v. Moss, supra, 98 Cal.App.3d at p. 743.)
We also find merit to defendant’s alternative contention that even if the court’s methodology of shortening time for the Notice was within its discretion, striking defendant’s answer as a sanction for her failure to attend trial was reversible error. “[S]anctions are generally imposed in an incremental approach, with terminating sanctions being the last resort.” (See Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, disapproved on another ground in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 516, fn. 17.) The imposition of a particular sanction is subject to reversal only for a manifest abuse of discretion which exceeds all bounds of reason. (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183.)
Even if we were to accept plaintiff’s argument that striking the answer was authorized under the court’s inherent authority to issue sanctions, its application in this case was clearly an abuse of discretion. Sanctions are intended to secure compliance with court orders, not to punish parties. (Electronic Funds Solutions, LLC v. Murphy, supra, 134 Cal.App.4th at p. 1183.) Courts possess inherent power to issue a terminating sanction for pervasive and consistent misconduct. (Id. at p. 1184.) A terminating sanction in the first instance is permitted only in cases involving a willful violation, preceded by a history of abuse, and where no lesser alternative would produce compliance with the order. (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799-800 (Del Junco).) The issuance of a terminating sanction should not be made lightly. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279.)
In Del Junco, the defendant was sued after he created a counterfeit website which resembled the plaintiff’s business website and contained defamatory statements. (Del Junco, supra, 150 Cal.App.4th at p. 791.) The defendant was enjoined from continuing to operate the counterfeit website, and ordered to pay monetary sanctions for filing improper pleadings that did not conform to court rules and violated the injunction and a vexatious litigant order. (Id. at pp. 795-796.) Finding the defendant’s actions “were willful and without justification and improperly burdened [plaintiff] to incur unnecessary expenses,” the trial court granted the plaintiff’s motion to strike the answer as a sanction after the defendant did not pay sanctions, continued violating the injunction, failed to respond to discovery, and did not appear for a conference. (Id. at pp. 796-797.)
The Court of Appeal affirmed the order imposing a terminating sanction, finding the trial court “had the jurisdiction to strike” the defendant’s answer. (Del Junco, supra, 150 Cal.App.4th at pp. 799-800.) The court cited the following circumstances in support of its decision: defendant acted as an obstructionist throughout the proceeding, and showed no
In this case, unlike Del Junco, counsel appeared on defendant’s behalf for every hearing during the pendency of the trial court proceedings. There is no evidence in the record of gamesmanship or other misconduct. Defendant, who had not been subpoenaed, had no obligation to appear pursuant to the untimely Notice, absent an order shortening the 10-day period under
Prejudice
In an effort to deem any possible error by the court to be harmless, plaintiff posits that defendant “has never presented any offer of the testimony which would have been introduced at
Violation of a statutory right ordinarily requires the appellant to establish prejudice in order to be entitled to reversal of the judgment. (Cal. Const., art. VI, § 13;
DISPOSITION
The judgment is reversed, and the cause is remanded with instructions to set aside the order striking defendant’s answer. Defendant is entitled to recover costs on appeal.
P. McKay, P. J.
We concur:
Ricciardulli, J. Guillemet, J.