De Luz Real Estate v. Barron

Filed 7/20/07 De Luz Real Estate v. Barron CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Erik Michael Kaiser, Judge. Affirmed.

Kathleen Barron, in pro. per., for Defendant and Appellant.

Nett & Nett, and Amy K. Nett for Plaintiff and Respondent.

Defendant Kathleen Barron (Barron) appeals after summary judgment was granted in favor of Plaintiff and Respondent De Luz Real Estate, Inc. (De Luz) in its action seeking damages for breach of contract, breach of implied warranty of good faith and fair dealing, and common counts (quantum meruit).^[1] We affirm.^[2]

I. PROCEDURAL BACKGROUND AND FACTS

De Luz, through its listing agent, Michael Buoye, entered into a listing agreement with Barron for the sale of 8.37 acres of land located in Southwest Riverside County. The list price was $249,000. Barron agreed to pay De Luz a 10 percent commission for procuring a buyer during the listing period. In March 2004, De Luz submitted an offer to Barron from Daniel and Adriana Cuevas, who were ready, willing and able to purchase the property at the time the offer was made. Barron refused to accept such offer and further refused to sell the property for the agreed upon list price.

Barron claims the list price was modified from $249,000 to $349,000. However, she acknowledges there is no written confirmation of this change because Buoye told her that written confirmation was not necessary. The listing expired on May 3, 2004.

On December 1, 2004, De Luz initiated this action seeking damages for Barrons failure to pay De Luz its commission after it had procured a ready, willing and able buyer for Barrons real property during the term of the listing.^[3] On July 11, 2005, the trial court ordered the case to arbitration. The arbitrators award was in favor of De Luz and was filed with the court on October 24, 2005.

Barron filed a request for trial de novo on November 7, 2005. In response, on November 8, De Luz filed its motion for summary adjudication as to the first cause of action for breach of contract. On December 9, Barron filed her motion to reopen discovery and continued the motion for summary adjudication. Both motions were heard and denied on January 11, 2006.

On March 22, 2006, Barron filed a motion for leave to file an amended answer, which was heard ex parte on March 24. The trial court denied the motion. On March 29, the court granted De Luzs motion for summary adjudication. On April 6, De Luz dismissed all remaining claims against Barron, and judgment was entered on May 22, 2006, in favor of De Luz.

Barron appeals, contending (1) the trial court abused its discretion in denying her request to reopen discovery and denying a continuance of the hearing on the motion for summary adjudication; (2) the trial court abused its discretion in denying her request for leave to file an amended answer in order to add affirmative defenses previously unknown; and (3) the trial court erred in granting the motion for summary adjudication.

II. STANDARD OF REVIEW

For each of Barrons claims, we apply the applicable standard of review. The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.] . . . A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record. [Citation.] The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred. [Citation.] (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.) Likewise, the decision to deny a motion to reopen discovery or deny a motion to amend a pleading is reviewed for abuse of discretion. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246; CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.) Summary judgment is proper if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) We independently review a trial courts decision granting a motion for summary judgment. (Paz v. State of California (2000) 22 Cal.4th 550, 557.) More specifically, we independently determine whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact . . . . (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)

III. DISCUSSION

Although Barron raises three issues in this case, we are unable to evaluate any of them because of her failure to provide us with an adequate record. While she provided us with each of the courts rulings, she has failed to provide us with the operative pleadings, the various motions, and the evidence (documents, or otherwise) which were considered by the court. As De Luz points out, the burden is on Barron to affirmatively demonstrate error by an adequate record. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) Failure to provide an adequate record requires that the issues on appeal be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) When the appellate record is devoid of necessary documents, the appellant cannot affirmatively demonstrate error by the trial court. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [appellant challenged the trial courts order granting a motion to strike but failed to include copies of the motion and opposing papers and had only the notice of ruling in the record].)

A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.] (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) [I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed. [Citation.] (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)

De Luz points out all of Barrons failings. Her brief is full of factual allegations unsupported by the record. The clerks transcript consists only of various orders, notice of appeal, notice designating the record on appeal and the register of actions. There is no reporters transcript. And Barrons citations to the record in support of her factual statements are to the register of actions. Given the state of the record, we cannot find any abuse of discretion or error on the part of the trial court that would warrant a reversal of the judgment.

IV. DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

MCKINSTER

J.

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^[1] Following the trial courts adjudication of the breach of contract claim, De Luz dismissed its remaining two causes of action on April 6, 2006.

^[2] Our review is hampered because Barron, acting in propria persona, has not followed the rules and conventions of appellate procedure. She has failed to provide this court with a complete record. (Cal. Rules of Court, rule 8.204(a)(1)(C) (formerly rule 14(a)( 1)(C)).) For instance, the record does not contain the operative pleadings. Instead, the record consists only of a clerks transcript encompassing a minute order, notice of ruling, notice of entry of order, judgment, notice of entry of judgment, notice of appeal, notice designating record on appeal, and register of action. Although Barron designated the reporters transcripts of the hearings for (1) the motion to reopen discovery, (2) the motion for summary adjudication, and (3) the motion to assess attorney fees, none have been provided. The burden of providing a record adequate to support an appeal is upon appellant. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)

^[3] Because there is an inadequate record, we take some of our facts from the briefs of the parties.