Filed 4/20/22 Do v. Twin Town Corp. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed.

Hanh Thi My Do, in pro. per., for Plaintiff and Appellant.

Murchison & Cumming, Dan L. Longo and Nancy N. Potter for Defendant and Respondent.

* * *

This is Hanh Thi My Do’s second appeal from a judgment in this case. In the first appeal, she challenged the judgment entered in her favor and against Twin Town Corporation—a judgment awarding her a lower amount of damages than she sought—arguing it must be reversed because the trial court improperly denied her a jury trial. We agreed, reversed the judgment, and remanded the case for a new trial.

Do now appeals from the judgment following the mid-trial dismissal of her case. The trial court dismissed Do’s case when she abandoned it by leaving the courtroom and refusing to return and complete the trial, despite a court order to do so. In her appellate briefing, Do fails to argue, either legally or factually, why the court might have erred in ordering the case dismissed. She has consequently waived any such contention.

Do’s only potentially viable contentions are her claims that she was entitled to entry of Twin Town’s default prior to the truncated trial, or that she was entitled to some res judicata benefit from the prior judgment entered in her favor. Neither claim is persuasive. Do’s default claim could only be based on a statute giving the court discretion to impose sanctions upon motion of a party—including striking a pleading and entering a default—if a party fails to comply with its pretrial obligations. Because Do has failed to establish either that she made such a motion, or that any abuse of that discretion occurred in this case, that argument fails.

Do’s assertion of res judicata is equally erroneous. Her first appeal resulted in the complete reversal of the prior judgment. As a result, that earlier judgment is entitled to no res judicata effect.

The judgment is affirmed.[1]

FACTS

As set forth in our prior opinion: “This lawsuit arises out of an automobile accident in which Do was rear-ended by another driver, Florena Randolph, after Do had slowed to avoid hitting an item that fell out of a truck in front of her. As described by Twin Town’s attorney in his opening statement, Do’s injuries included a hip fracture requiring surgery, as well as a neck fracture that required pins. She also had “issues with the hardware,” which had to be removed eight months later. Her orthopedic surgeon restricted her from running for 10 months after the accident. (Do v. Twin Town Corporation (Feb. 28, 2019, G055258) [nonpub. opn.] (Do I).)

“Do filed suit against Randolph, as well as Randolph’s employer, Twin Town. All three parties demanded a jury trial. Do later settled with Randolph for $100,000 and, as a result, dismissed the complaint against her. Do proceeded to trial against Twin Town.” (Do I, supra, G055258.)

After the trial court erroneously accepted a waiver of jury trial by an attorney assisting Do, and later refused to relieve her of that waiver, the parties proceeded to a court trial “to resolve disputes over whether Twin Town’s employee, Randolph, was negligent in failing to stop in time to avoid hitting Do, and whether Do remained unable to work as an intensive care nurse as a consequence of her injuries and resulting complications. At the conclusion of trial, the court announced its decision in favor of Do.” (Do I, supra, G055258) After allocating fault and offsetting the sum Do received in an earlier settlement with Randolph, the court awarded Do net damages of $47,917. (Ibid.)

In Do I, we agreed with Do’s assertion the trial court erred by denying her a jury trial; we consequently reversed that judgment in favor of Do and remanded the case for a new trial. (Do I, supra, G055258.)

Following remand, the parties and court prepared for the retrial. The trial commenced in February 2021 before a jury.

As Twin Town explains, Do “presented evidence at trial on February 24 and 25. She was scheduled to present her last evidence on March 2, 2021, but came in that day complaining of back pain. She declined court-offered accommodations and left the courtroom, refusing to return. The Court served her with an Order to Show cause to appear the following day, March 3. [Citations.] [Do] did not come to court on March 3 as ordered. She did call the court at the appointed time, claimed she was transferring parts of her case to another lawsuit (or consolidating it) and asked for a lengthy continuance. The trial court found her claims of inability to continue to be not credible, and denied her Motions. [Citation.] The trial court found that her actions amounted to an abandonment of the case and on [Twin Town’s motion] pursuant to Code of Civil Procedure Section 581(d), dismissed the case with prejudice on the ground [Do] had abandoned it.”[2]

DISCUSSION

1. Standards on Appeal

All trial court orders and judgments are presumed correct on appeal, and it is the appellant’s burden to affirmatively demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d. 557, 564; People v. Tang (1997) 54 Cal.App.4th 669, 677 [“‘We must indulge in every presumption to uphold a judgment, and it is [appellant’s] burden on appeal to affirmatively demonstrate error—it will not be presumed.’”].) Moreover, “[t]he general rule is that on a silent record the ‘“trial court is presumed to have been aware of and followed the applicable law”’ when exercising its discretion.” (Biscaro v. Stern (2010) 181 Cal.App.4th 702, 708.) We do not independently examine the record to look for errors not raised by the appellant, nor do we assess whether the evidence would have been sufficient to support a judgment in favor of the appellant, when no such judgment was entered.

It is not enough for the appellant to identify an error. The appellant must also establish that the error was of such significance that its absence would likely have altered the outcome of the case. (Cal. Const., art. VI, § 13 [“No judgment shall be set aside . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice”]; People v. Watson (1956) 46 Cal.2d 818, 836 [“a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”].)

Here, while Do’s opening brief makes numerous assertions of error, none of them is supported by authority, and she has provided almost no factual context to assist us in understanding their significance. Do’s failure to support her contentions with citations to the record can be viewed as a waiver of any claim. (See Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 826.)

2. The Dismissal Order

As discussed in this court’s April 7, 2021 order, this appeal is from the judgment following the trial court’s order dismissing the case. In her opening brief, Do barely acknowledges the dismissal. To the extent she does reference it, she identifies the order by date, and then argues that it was illegitimate because it had “no signature.” Do offers no authority for the implicit proposition that a court order must be signed.[3] We know of none.

It is only because Twin Town sets forth the salient facts in its briefing that we understand the dismissal came in the midst of trial, as a consequence of Do’s refusal to return to court. Having failed to acknowledge what happened, let alone explain why it was error to dismiss her case, Do has waived any such contention.

Nonetheless, Do offers alternative contentions, which Twin Town acknowledges can be extracted from her opening brief, which if valid might have entitled Do to some relief without having to prove her case at trial. We will consequently address those contentions.

3. Do’s Entitlement to a Default

Do asserts she was entitled to entry of a default against Twin Town because Twin Town failed to properly participate in pretrial proceedings, thus requiring continuances of the trial. Her assertions are not supported by citations to the record, however, which means her argument is waived.

But even if Do’s argument were properly supported, it would fail. While Superior Court of Orange County, Local Rules, rule 381, authorizes the imposition of an array of sanctions based upon a party’s failure to comply with local rules, or to proceed with diligence in preparing for trial, rule 381 requires the opposing party to make a noticed motion seeking such sanctions, which Do apparently failed to make. Further, even if Do had made such a motion, the court would have had discretion to choose a lesser sanction, or to impose none at all.

Consequently, Do has shown no entitlement to entry of Twin Town’s default in this case.

4. Do’s Res Judicata Claim

Do also seems to argue she was entitled to some res judicata benefit at her second trial based on our ruling in her first appeal. When Do appealed from the judgment from her first trial, she succeeded in having that judgment completely reversed. The effect of that reversal was to restore the proceeding to the point just before the first court trial started. (Department of Industrial Relations v. Nielsen Construction Co. (1996) 51 Cal.App.4th 1016, 1031 [“‘“The effect of an unqualified reversal . . . is to vacate the judgment, and to leave the case ‘at large’ for further proceedings as if . . . no judgment had ever been rendered’””].) A judgment rendered by the trial court becomes binding only when it is final—either because it is affirmed on appeal or because the time to file an appeal has expired. Because the 2017 judgment never became final, it was entitled to no subsequent res judicata effect.

Additionally, to the extent Do suggests there are binding factual statements in the Do I opinion that demonstrate the merit of her lawsuit, she is mistaken. The doctrine of law of the case, which makes binding the legal rulings in an appellate opinion, has no application to the facts recited in an opinion. “The law of the case doctrine is subject to an important limitation: it ‘applie[s] only to the principles of law laid down by the court as applicable to a retrial of fact,’ and ‘does not embrace the facts themselves . . . .’ [Citation.] In other words, although an appellate court’s legal determination constitutes the law of the case, ‘upon a retrial . . . that law must be applied by the trial court to the evidence presented upon the second trial.’” (People v. Barragan (2004) 32 Cal.4th 236, 246.)

DISPOSITION

The judgment of dismissal is affirmed. In the interests of justice, the parties shall each bear their own costs on appeal.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.

[1] Do also filed two motions to augment the record. We deny both. The first motion, filed June 7, 2021, is denied because Do’s opening brief contains no citations to any of the documents covered by the motion. The second motion to augment, dated October 26, 2021, appears to seek the addition of a document styled as a “Motion to Change Judge . . . ,” which was ostensibly submitted to the presiding judge of the Orange County Superior Court. As Twin Town points out, there is no indication the motion was filed with the court, and it does not appear to bear on any of the court’s rulings in this case. In any event, by the date this second motion to augment was filed, the case was fully briefed. The document is consequently irrelevant.

[2] We adopt Twin Town’s description of these events, which we find fully supported by the record, because Do has failed to address what occurred in her opening brief.

[3] Do does assert, without further explanation, that the court abused its discretion—perhaps in regard to issuing the dismissal order—because “despite there being no prejudice, the court and defendant nonetheless denied [Do’s] request to change judge or mistrial to legalize defendant’s trial position and update trial package, with covid signs and symptoms of covid protocol.” That assertion is neither explained nor supported by any citations to the record. Do also asserts, without context, that she “never abandon[ed] the court case” and she didn’t “have any authority to participate in a[] non‑compliant action.” Even assuming those contentions related to the dismissal order, they are not sufficiently explained or supported by Do to warrant review. (See Unetco Industries Exchange v. Homestead Ins. Co. (1997) 57 Cal.App.4th 1459, 1469 [bare claim unsupported by argument waives the issue].)