Filed 4/23/21 Martin v. Mancuso CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Plaintiff and appellant Rudy Martin appeals from an order of dismissal entered after he failed to pay the filing fee to commence a civil case in the trial court, as well as a post-dismissal order denying a subsequent fee waiver request.[1] He contends that the trial court erred in denying his fee waiver applications. Finding no error, we affirm the orders.

I. Background

Martin describes his case as “an action for fraudulent conveyance to hide property from collection on a judgment where [Martin] is the judgment creditor,” although he did not designate the complaint as part of the record on appeal. In December 2016, Martin filed a fee waiver application. The trial court denied the request. In response, Martin requested a hearing on the fee waiver application, which the court scheduled for January 23, 2017, at 8:30 a.m. On appeal, Martin contends he was already in trial in another court case, although he does not cite any evidence in the record in support of this contention. He alleges in his appellant’s opening brief that, “late in the day on January 20, 2017,” Martin was told he would have “to return early in the morning of January 23, 2017, to meet with the Court’s Clerk to resolve matters that were before that Court in order to be ready to resume the matter at 9:00 A.M.” Martin asserts he was “given no time at the end of Friday, nor before the hearing Monday morning, [and] was unable to contact” the court about the scheduling conflict prior to the fee waiver hearing. There is no evidence in the record on appeal confirming these allegations.[2]

The trial court denied the request for a fee waiver because Martin “did not go to court on the hearing date to provide the information the court needed to make a decision.” The form notifying Martin of the denial of his fee waiver request warned: “You have 10 days after the clerk gives notice of this order [on 1/23/17] to pay your fees as ordered . . . .” “If you do not pay, your court papers will not be processed.” Although Martin references only the January 23, 2017 order in his appellant’s opening brief, the record on appeal indicates he filed a second fee waiver application on March 21, 2017, which the trial court denied on March 23, 2017.

On April 7, 2017, the trial court received a request for a hearing on the fee waiver application. The court denied the request because “[t]he hearing request was not filed within the ten days after the clerk gave notice of the denial of the request for a fee waiver,” as required by Government Code section 68634, subdivision (g).[3]

Defendant P. John Mancuso filed an ex parte application seeking an order of dismissal based on Martin’s failure to pay the required fees after the court denied his fee waiver applications. Thereafter, the trial court issued an order to show cause (OSC) as to why Martin’s case should not be dismissed for failure to pay the filing fee. The record indicates the court held a hearing on the OSC; the record does not indicate whether Martin appeared at that hearing, as Martin did not designate the minute order from the hearing as part of the clerk’s transcript and he elected to proceed without a record of the oral proceedings in the trial court. Following the hearing, the trial court entered an order in September 2017, dismissing without prejudice Martin’s complaint for failure to pay the filing fee. In November 2017, Martin timely appealed in case number H045537 from the order of dismissal.[4]

After the court dismissed the action, Martin filed at least two subsequent fee waiver applications, both of which were denied because the case had already been dismissed. In February 2019, Martin filed a notice of appeal in case number H045630 from the January 31, 2018 order denying a subsequent fee waiver request.[5]

II. Discussion

A. Appeal of Order of Dismissal (H045537)

Martin represents himself in this appeal, as he did at the trial court. As a party representing himself, Martin “ ‘is entitled to the same, but no greater, consideration than other litigants and attorneys.’ [Citations.] Accordingly, we may disregard factual contentions that are not supported by citations to the record [citation] or are based on information that is outside the record [citation]. [Fn. omitted.] We may disregard legal arguments that are not supported by citations to legal authority [citation] or are conclusory [citation] . . . . [W]e will bear in mind that an ‘ “order of the lower court is presumed correct.” ’ [Citation.] Therefore, [the appellant] has the burden of affirmatively showing any error. [Citation.]” (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520, rehg. den. (June 18, 2019), review den. (Aug. 21, 2019) (Tanguilig).)

Section 68634, subdivision (b), provides that “[a]ll applications for an initial fee waiver shall be accepted for filing.” “On review of an application for an initial fee waiver the court shall take the following actions, as applicable: [¶] (1) Grant the application if the information provided on the application establishes that the applicant meets the criteria for eligibility and application requirements set forth in Sections 68632 and 68633. [¶] (2) Deny the application if the application is incomplete. If the application is denied on this basis, the applicant shall be given notice of the specific reason for denial and a reasonable opportunity to submit a revised application. [¶] (3) Deny the application if the information provided on the application conclusively establishes that the applicant is not eligible for an initial fee waiver under Section 68632 on the grounds requested. If the application is denied on this basis, the applicant shall be given notice of the specific reason for denial and a reasonable opportunity to request a hearing. The applicant may submit additional information at the hearing.” (§ 68634, subd. (e).) “If an application is denied in whole or in part, the applicant shall pay the court fees and costs that ordinarily would be charged, or make the partial payment as ordered by the court, within 10 days after the clerk gives notice of the denial, unless within that time the applicant submits a new application or requests a hearing under subdivision (e).” (§ 68634, subd. (g).)

To the extent Martin’s claims are reviewable, he has shown no error. Martin’s appeal is from the order of dismissal entered after he failed to timely pay the initial filing fee. Here, the trial court set a hearing pursuant to section 68634, subdivision (e), in order to ascertain Martin’s eligibility for an initial fee waiver. Martin did not attend the hearing in January 2017. Accordingly, the trial court denied Martin’s initial fee waiver application. This is the only pre-dismissal order Martin specifically references in his appellant’s opening brief. Over two months later, the trial court received a request for a hearing, and the clerk denied the application because it was not filed within ten days after the clerk gave notice of the denial of the request for a fee waiver, as required by section 68634, subdivision (g).[6] The order of dismissal then followed for failure to pay the initial filing fee. Martin identifies no error in the trial court’s application of the fee waiver statute and the subsequent dismissal for failure to pay the filing fee, and our review of the record has found none.

While Martin contends that he was prevented from attending the eligibility hearing because of an obligation imposed in another case, Martin makes no attempt to explain why he did not seek reconsideration or rehearing within 10 days of the denial of his fee waiver application. Nor does he cite to anything in the record supporting his contention. Indeed, as can be discerned from the record before us, Martin did not request reconsideration; he waited almost two months to file a subsequent fee waiver application, and waited more than 10 days after that application was denied to seek a hearing. Thus, after his fee waiver request was denied and in the absence of a request for reconsideration, Martin was obliged to “pay the court fees and costs that ordinarily would be charged” in his case. (§ 68634, subd. (g).)

Martin relies on Boddie v. Connecticut (1971) 401 U.S. 371, 377 (Boddie), for the proposition that, “ ‘absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.’ ” Without further discussing the application of Boddie to the present case, Martin then contends he “had been recognized by other Judges of this Court as qualifying for a fee waiver, but in this case, the Court made several denials without providing [him] a hearing and actively obstructed [his] making fee requests.” The record, however, indicates that Martin was granted a hearing, which he did not attend or give the court notice he could not attend, and that he did not request a new hearing-following either the January 2017 or March 2017 orders denying his fee waiver applications-within the 10-day period required by section 68634, subdivision (g). Contrary to Martin’s arguments, Martin was given a meaningful opportunity to be heard but did not avail himself of that opportunity.

Martin also asserts that the trial court failed to provide a reasonable statement of the basis for its determination. Not so. As already described, the trial court denied Martin’s fee waiver application after the January 2017 hearing because Martin failed to attend the hearing to provide necessary information. The court said as much on the order denying the fee waiver request. The court then denied Martin’s subsequent request for a hearing because it was untimely and said so on the order denying the request for a hearing. Under the circumstances, the court’s explanations were adequate in notifying Martin why his requests had been denied.[7]

Martin next asserts that the trial court “farmed out to Court Clerks a high degree of decision making” with respect to rejecting the fee waiver requests. Section 68634, subdivision (d) prohibits a trial court from “delegat[ing] to a clerk the authority to deny or to partially grant an application for an initial fee waiver.” (Italics added.) In this case, the trial court ultimately denied Martin’s request for an initial fee waiver after hearing. Thus, in accordance with section 68634, subdivision (d), the trial court itself considered Martin’s initial fee waiver request. All subsequent denials were based on patent procedural flaws in Martin’s request—that the first subsequent request was untimely filed and all subsequent requests were filed after the case was dismissed. Martin fails to identify any delegation of authority that was prohibited by statute.

Finally, Martin asserts that the trial court deprived him of due process of law by contributing to his “not being able to pay because the Court ordered [his] income [in another case], which came from his rental property, be held in a blocked account . . . .” Beyond citing to four United States Supreme Court cases,[8] Martin makes no argument as to how the court’s action to put rental income in a blocked account amounted to a due process violation, or how those cases apply to the facts of this case. As we have explained, it appears on this record that Martin was provided adequate access to the court and did not avail himself of the opportunity to contest the court’s decision about his fee waiver request. No due process violation is evident on this record. We therefore affirm the September 18, 2017 order of dismissal.

B. Appeal of Postjudgment Order Denying Fee Waiver Request (H045630)

Martin noticed the appeal of the January 31, 2018 order denying his post-dismissal fee waiver application. (See fn. 5, ante.) In his opening brief, which should have addressed both the September 2017 order of dismissal and the January 31, 2018 post-dismissal denial of his fee waiver request, Martin does not reference the January 31, 2018 order in any way; he does not specify any factual or legal contentions revealing an error on the trial court’s part in issuing the order.

Martin does reference the January 31, 2018 order in his supplemental brief, requested by this court to address the appealability of that order. In the supplemental brief, Martin does not address the issue of appealability, or otherwise address the substantive merits of the appeal of that order. Rather, he contends that this court created confusion by comingling documents filed in the two appeals at issue with those pertaining to a third, unrelated appeal (appeal No. H044760). A review of the dockets in each of these cases reveals that any erroneously filed documents were properly refiled under the correct appeal number. As already addressed, the notice of appeal filed in appeal number H045630 clearly identifies the January 31, 2018 order as the order under review. Martin had notice that appeal numbers H045537 and H045630 would be considered together for purposes of briefing, oral argument, and decision, such that he had notice any arguments regarding the January 31, 2018 order should have been raised in the opening brief he filed in these appeals.

“An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.’ [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]” (Benach, supra, 149 Cal.App.4th at p. 852.) Although we were unable to discern from Martin’s opening brief any alleged error related to the January 31, 2018, to the extent he did assert such an error, he did not include argument or legal authority, and thus waived the issue. As we presume the trial court’s order is correct, and because Martin has the burden of affirmatively showing an error (Tanguilig, supra, 36 Cal.App.5th at p. 520), we must affirm the January 31, 2018 order.

III. Disposition

The September 18, 2017 order of dismissal (appeal No. H045537), and the January 31, 2018 order denying Martin’s fee waiver application (appeal No. H045630) are affirmed. In the interests of justice, each party shall bear their own costs on appeal.

_______________________________

Greenwood, P.J.

WE CONCUR:

_______________________________________________

Bamattre-Manoukian, J.

__________________________________

Grover, J.

Martin v. Mancuso et al.

Nos. H045537/ H045630

[1] Martin filed separate notices of appeal for each order, which this court designated as appeal numbers H045537 (order of dismissal) and H045630 (order denying fee waiver). On its own motion, this court ordered these appeals considered together for purposes of record preparation, briefing, oral argument, and disposition.

[2] At oral argument, Martin contended that the record did contain such evidence, referencing minute orders purportedly from a trial held in Santa Clara County Superior Court case number 2013-1-PR-171957. Martin’s appendix, filed in appeal number H045630 does include three pages from what appears to be a minute order for a long cause trial starting January 9, 2017. The page numbering on each page of the document indicates the full minute order was 12 pages long; Martin provided pages 1, 8, and 9 of the minute order in his appendix. On page 8 of 12, there is a reference that the court continued the trial to January 23, 2017, at 9 a.m. However, nothing on this page reveals the date the trial court made the order continuing the trial. Page 9 of 12 indicates that court convened on the record on January 23, 2017, at 9:32 a.m. These pages from the minute order do not confirm that Martin did not have the opportunity to notify the trial court that he would be unable to appear at the fee waiver hearing at 8:30 a.m. on January 23, 2017.

[3] All subsequent statutory references are to the Government Code unless otherwise indicated.

[4] Although not named a judgment of dismissal, “[a] signed order of dismissal is an appealable judgment.” (Vitkievicz v. Valverde (2012) 202 Cal.App.4th 1306, 1310, fn. 1; see also Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619, 622, fn. 3 [dismissal of action without prejudice is an appealable order because dismissal was by the court without any agreement by the parties as to future litigation or waiver of the statute of limitations]; Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1105-1106 [even though order of dismissal is without prejudice, the order, resolving the action and unaccompanied by stipulation to waive statute of limitations, is final for purposes of appealability].)

[5] We requested supplemental briefing from the parties addressing the appealability of the January 31, 2018 order. In response, Martin contended that, “The appeal case #H045630 is an appeal of about a dozen orders beginning December 7, 2016 and going to September 27, 2017; then after this appeal filed on November 6, 2017, the Superior Court issued more related orders which became added when the Court of Appeal[] realized this case #CV303646 was wrongly put in amongst the case #H044760 which had been for Superior Court case #CV285753. The Court of Appeal[] then corrected the intermixed filings and created the appeal case #H045630 and #H045537 to separate out these separate matters (whereby several issues arose which required resolving and at which time the newly arisen January 31, 2018 order was added to the list of appealed orders which were prior to October 2017).” The notices of appeal at issue in appeal numbers H045537 and H045630 clearly indicate which orders Martin seeks to appeal. The notice of appeal filed in November 2017 specifies he is appealing the judgment of dismissal and “dismissal after denying fee waiver and initial filing fee not paid”; Martin confirmed in his appellant’s opening brief that he is appealing the September 18, 2017 order. The notice of appeal filed in February 2018 designates only the January 31, 2018 order as the subject of the appeal.

[6] Martin’s arguments on appeal suggest the trial court denied the request for hearing because it was not filed within 10 days after the January 23, 2017 order. While the record indicates Martin filed a subsequent fee waiver request in March 2017, which the trial court denied March 23, 2017, his request for hearing, filed April 7, 2017, was similarly not filed within 10 days after the March 23, 2017 order.

[7] As already noted, Martin did not discuss any potential irregularities related to the fee waiver application the trial court denied in March 2018; his recitation of the facts suggests the April 7, 2017 request for hearing, and subsequent denial of that request, pertained to the January 23, 2017 order denying his initial fee waiver application, rather than his March 2018 application. By failing to assert an error, or provide substantive legal analysis regarding the March 2018 application and order, we consider any arguments related thereto to be forfeited or waived. (W.S. v. S.T. (2018) 20 Cal.App.5th 132, 153; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).)

[8] The cases Martin cites address general principles of due process and equal protection: Boddie, supra, 401 U.S. at p. 371; Johnson v. Avery (1969) 393 U.S. 483; M.L.B. v. S.L.J. (1996) 519 U.S. 102; and Mayer v. Chicago (1971) 404 U.S. 189.