Rhue v. Shay

Filed 3/15/07 Rhue v. Shay CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

Appeal from a judgment of the Superior Court of Los Angeles County, Jan A. Pluim, Judge. Affirmed.

Harolyn Rhue, in pro. per., for Plaintiff and Appellant.

Law Offices of Nate G. Kraut, Nate G. Kraut, for Defendant and Respondent.

INTRODUCTION

This is an appeal from a judgment after court trial. Plaintiff and Appellant Harolyn Rhue (plaintiff) sued her real estate broker, defendant and respondent Allen B. Shay (defendant), asserting various claims of fraud and deceit in connection with the sale of her condominium and the subsequent purchase of a home. Defendant cross-complained asserting claims for slander and intentional/negligent infliction of emotional distress.

Plaintiff represented herself at trial, testified at length concerning her claims against defendant, and responded to multiple questions from the trial court. In addition to his own detailed testimony concerning the parties respective claims, defendant presented testimony from a former client concerning the cross-claim for slander and from his chiropractor concerning treatment for stress.

After hearing all the testimony, receiving documentary evidence, and hearing oral argument from both sides, the trial court found defendant to be a hard-working, decent[,] honorable person of our community. It further found that during the time defendant represented [plaintiff] as a broker. . . . [defendant] had [plaintiffs] best interest at heart. And he did what he could for [her]. In contrast, the trial court found that plaintiff had slandered defendant, caused him to lose a commission on the sale of a home, acted outrageously towards him, and intentionally inflicted emotional distress upon him. Based on those findings, the trial court entered a judgment under which plaintiff took nothing on her complaint and defendant was awarded $36,000 in lost commissions and $1,200 for costs incurred for chiropractic treatment.

Representing herself on appeal, plaintiff asserts a variety of contentions and allegations in her opening brief. But she does not present any theory upon which a claim of prejudicial error could be predicated. Based on the record on appeal, we affirm the judgment of the trial court.

DISCUSSION

Plaintiff represented herself at trial without the aid of legal counsel, and continues to represent herself on appeal.[1] Although we recognize the difficulties an in propria persona litigant faces on appeal, plaintiffs lack of legal representation does not exempt her from complying with the basic requirements applicable to all litigants on appeal. (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1 [While we are mindful that [appellant] is representing himself on appeal, his status as a party appearing in propria persona does not provide a basis for preferential consideration. A party proceeding in propria persona is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys].) In light of well established principles, we affirm the judgment for the following reasons.

Plaintiff complains that her attorney abandoned her prior to trial and, due to the timing, she was unable to retain new counsel. But she provides no specific facts, such as dates or other information, that would allow a reasoned analysis of her implicit claim of prejudice, nor does she cite to authority that would entitle her to appellate relief based on her unsupported allegations of abandonment. For example, the record does not contain a motion by plaintiffs counsel to withdraw as counsel of record, or minute order ruling on such a motion.[2] Based on the record, we cannot assess the merits of plaintiffs unsupported claim that her attorney abandoned her.[3]

In reviewing the judgment below, we are obligated to affirm if there is substantial evidence to support the judgment. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874 [when there is substantial evidence to support the trial courts judgment, the reviewing court has no power to substitute its own deductions].) Even if there is conflicting evidence, this does not mean that there is not sufficient evidence to support the judgment. (Ibid.) Plaintiff suggests that the trial courts judgment was not supported by substantial evidence, but our review of the record of the trial leads us to conclude otherwise.

At trial, in response to plaintiffs lengthy testimony, defendant provided detailed testimony to counter her various assertions of fraud and negligence, and the trial court found defendant to be a credible witness. Defendant also testified in detail about his slander claim, and his former client corroborated the fact that defendant lost a home sale due to the derogatory comments about defendant that plaintiff made to the former client. In addition, defendant testified about the distress caused by the derogatory comments about him that plaintiff made to members of defendants community; and his chiropractor corroborated that he was experiencing symptoms of stress and receiving treatment related to plaintiffs conduct.

The trial court heard the lengthy testimony of both parties, posed questions to each of them, and then made specific factual findings that are supported by the record. In addition to a general finding that defendant was a hard-working, decent[,] and honorable member of the community, the trial court specifically found that he had not committed fraud or been negligent in his handling of the two real estate transactions in issue. On the other hand, the trial court found that plaintiff had acted outrageously towards defendant, slandered him, and caused him to lose a home sale. Most of those findings turned on credibility determinations that the trial court was in the best position to make. (See Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243 [The trier of fact is the exclusive judge of the credibility of the witnesses], disapproved on other grounds as stated in Liodas v. Sahadi (1977) 19 Cal.3d 278, 287.) Moreover, it is evident from the record that the trial court accepted defendants explanation of the various complaints raised by plaintiff and rejected her testimony to the contrary. Under the substantial evidence standard of review, we cannot reweigh the evidence. Weighing the evidence is a function of the trial court, not the appellate court. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544.)

Our review of the record of the trial demonstrates that there was sufficient evidence in support of the trial courts findings. We are therefore required to affirm the judgment.

DISPOSITION

The judgment of the trial court is affirmed, and each party shall bear his or her own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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[1] On June 8, 2006, the law firm of Reed Smith LLP substituted into this proceeding on behalf of plaintiff. On July 26, 2006, Reed Smith moved to withdraw as counsel of record on appeal, citing to the substantial, irreconcilable differences that had arisen between that firm and plaintiff. On July 31, 2006, this court granted Reed Smiths motion to withdraw, and plaintiff has not retained new counsel.

[2] The Case Summary in the clerks transcript shows an initial appearance by plaintiff in propria persona on April 2, 2004, and a substitution of attorney filed by Attorney for Plaintiff on August 13, 2004. The last filing by the Attorney for Plaintiff is a March 2, 2005, notice of ruling on an unspecified motion or application. But none of those documents are in the clerks transcript.

[3] The reporters transcript reflects an exchange at the end of trial between plaintiff and the trial court during which the court stated, Thats why I asked you to get a lawyer to which plaintiff responded, Your Honor, I couldnt afford a lawyer. This suggests that, sometime prior to the commencement of trial, the trial court advised plaintiff that she should retain trial counsel.