Levatino
Filed
7/18/13 Hernandez v. Levatino CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
DAVID S. HERNANDEZ,
Plaintiff and
Appellant,
v.
CHARLES R. LEVATINO,
Defendant and
Respondent.
F064938
(Super.
Ct. No. 670673)
APPEAL
from a judgment of the Superior Court of
County. Timothy W. Salter, Judge.
David S.
Hernandez, in pro. per., for Plaintiff and Appellant.
McCormick,
Barstow, Sheppard, Wayte & Carruth LLP, Marshall C. Whitney and Scott M.
Reddie for Defendant and Respondent.
-ooOoo-
David S. Hernandez’s (hereafter
Hernandez) divorce from Sherri L. Hernandez (hereafter Wife) was final in
2004. Since that time Hernandez has
filed numerous actions challenging the distribution of the marital assets.
In this action, Hernandez sued Charles
R. Levatino, who represented Wife in the divorce. Hernandez’s complaint and
understand. It appears Hernandez alleges
the trial court appointed Levatino a trustee for Hernandez and, as a result,
Levatino owed Hernandez a fiduciary duty.
Levatino allegedly breached this fiduciary duty when the marital assets
were sold and/or divided.
Levatino filed a special motion to
strike the complaint pursuant to Code of Civil Procedure section 425.16,
subdivision (b)(1),
title="">[1] alleging that Hernandez’s complaint was a
strategic lawsuit against public participation (hereafter SLAPP). The trial court concluded that the causes of
action in Hernandez’s complaint arose from statements and actions occurring in
a judicial proceeding (
possibility Hernandez would prevail on the merits of the claim (
struck Hernandez’s complaint, entered judgment in favor of Levatino, and
awarded Levatino attorney fees.
We have thoroughly reviewed the
record and conclude the trial court reached the correct conclusion. All of the actions complained of by Hernandez
arose out of Levatino’s representation of Wife, and there is no possible merit
to the claims asserted by Hernandez.
Thus, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On November 16, 2011, Hernandez
filed a complaint titled “Complaint Breach of Fiduciary Responsibily [
Levatino, the only defendant, was entrusted by the trial court with dividing
the proceeds from the sale of community assets, thereby creating an
attorney-client relationship between Hernandez and Levatino. The complaint described the relationship as
“confidential†and asserted Levatino became Hernandez’s fiduciary. According to the complaint, Levatino breached
his fiduciary obligations when he made misrepresentations, failed to account
for assets, failed to provide all sale documents related to community assets,
and failed to provide an accounting for the sale of the community assets. Hernandez alleged he was unaware of
Levatino’s “dishonest motive†until November 10, 2010. Hernandez claimed he justifiably relied on
Levatino because it was in the best interest of Levatino’s client (Wife) to
maximize the sale of the community assets.
The complaint also asserted
Levatino falsely represented to the trial court on April 23, 2008, that a 2000
Ford Windstar van was sold during the marriage and Hernandez received a credit
of $3,800 as his half of the sale proceeds.
The complaint alleged the vehicle was not sold during the marriage. As a
result of this misrepresentation, the complaint alleged Hernandez was deprived
of his portion of the asset and caused him to lose motions he filed in 2008 and
2011 to correct this issue.
In addition, the complaint alleged
Hernandez was damaged in an amount in excess of $300,000 when the community
residence and another vehicle were sold.
He claimed the residence was sold as a three-bedroom home when it was a
five-bedroom home.
In September 2009, Hernandez filed
a claim with Stanislaus County (hereafter County), apparently seeking recovery
for Levatino’s alleged misconduct. We
presume Hernandez asserted Levatino was acting as an employee of the court at
the time he acted, but Hernandez’s reasoning is unclear. Another document filed with the trial court
asserted that in December 2010 Hernandez learned that the van had not been sold
and alleged Levatino made misrepresentations to the trial court about the
van.
Levatino challenged the complaint
in several respects. As pertinent, he
filed a motion pursuant to section 425.16, asserting the trial court should
strike the complaint because the actions alleged by Hernandez were privileged
since Levatino was acting at all relevant times as Wife’s attorney. Included in the motion was a declaration
filed by Levatino that explained he was hired by Wife in 2003 to represent her
in the proceedings to dissolve her marriage to Hernandez. Levatino never represented Hernandez “in any
way†or “at any time.†Hernandez and
Wife stipulated to the sale of the family residence in 2003. A lien for unpaid child support was paid to
County from the sale proceeds, and Hernandez received credit for that lien in
the final settlement.
Levatino again represented Wife in
2008 when Hernandez filed a “Motion for Failure in the Division of Marital
Assets†and a “Motion for Deliberate Misappropriation.†On April 24, 2008, the trial court denied
Hernandez’s motions, concluding the marital assets had been divided pursuant to
the stipulation. Hernandez then filed a
claim with County alleging Levatino had misappropriated marital assets.
Hernandez next filed a “Petition to
Enforce Marital Property in the Hernandez Dissolution.†This motion asked the trial court to
reconsider its April 24, 2008, order.
The trial court denied this motion on July 13, 2010. This court denied Hernandez’s appeal from
that order. (Hernandez v. Hernandez (June 16, 2011, F060828) [nonpub.
opn.].)
On August 9, 2011, Hernandez filed
a “Motion Regarding Misrepresentation and Fraud.†This motion was denied on September 13, 2011.
During this entire time, Levatino
asserted he represented Wife only, and all representations he made to the trial
court were accurate statements of the facts known to him and were made in the
course of representing Wife.
Hernandez opposed the motion to
strike. We interpret his opposition as
asserting Levatino was a court-appointed trustee over Hernandez and Wife’s
community assets, and therefore Levatino owed a fiduciary duty to
Hernandez. Levatino breached this
fiduciary duty, according to Hernandez, by (1) concealing assets from Hernandez,
(2) failing to divide the community assets properly, (3) failing to
provide an accounting, and (4) failing to disclose the location of hidden
assets. The sole basis for the claims
revolved around the sale of the van and the sale of the residence.
The trial court granted the motion
to strike, concluding Levatino had met his burden of establishing he was
entitled to the protection found in section 425.16, subdivision (b), and that
Hernandez had failed to establish there was a probability he would prevail on
the merits. This order was issued on
March 8, 2012.
On March 22, 2012, Hernandez filed
a motion for reconsideration of the order granting the motion to strike, which
was denied. This appeal followed.
DISCUSSION
The notice of appeal appears to
indicate Hernandez is appealing from the judgment entered after the trial court
granted Levatino’s special motion to strike.
He also appears to appeal from the order denying his motion requesting
judicial notice.
title="">[2]
Since Hernandez’s brief is very
difficult to understand, we will do our best to determine the reasons Hernandez
feels the trial court erred. We begin
with section 425.16, the anti-SLAPP statute.
I. Anti-SLAPP Motion
The
statute
Section 425.16, subdivision (b)(1)
states that a cause of action that arises from any act by the defendant that is
in furtherance of the defendant’s “‘right of petition or free speech under the
States Constitution or the California Constitution in connection with a
public issue’†is subject to a special motion to strike unless the plaintiff
can establish there is a “probability that the plaintiff will prevail on the
claim.â€
The phrase “right of petition or
free speech under the United States Constitution or the California Constitution
[performed] in connection with a public issue†is defined in section 425.16,
subdivision (e). As pertinent here, the
definition of the phrase includes “any written or oral statement or writing
made before a … judicial proceeding.â€
(§ 425.16, subd. (e)(1).)
The anti-SLAPP statute is designed to deter and quickly dispose of
frivolous litigation. (
311-312 (Flatley).) The statute allows the trial court to
evaluate the lawsuit at an early stage in a manner similar to summary
judgment. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180,
192.) The granting of an anti-SLAPP
motion results in dismissal of the claims on the merits and entitles the
defendant to recover costs and attorney fees.
(Ibid; § 425.16,
subd. (c)(1).)
In ruling on a special motion to strike, the trial court follows a
two-step analysis. (Smith v. Adventist Health System/West (2010) 190 Cal.App.4th 40,
50.) The moving defendant carries the
initial burden to show the challenged cause of action arises from protected
free speech or petitioning activity. (
(2011) 192 Cal.App.4th 1381, 1387.) The
burden is satisfied by demonstrating that the conduct underlying the
plaintiff’s claim fits into a category of protected
activity set forth in section 425.16, subdivision (e).
82, 88 (Navellier).)
If the trial court finds the defendant’s threshold showing has been
made, the burden shifts to the plaintiff to produce evidence establishing a
probability that he or she will prevail at trial on the cause of action. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) To meet this burden, the plaintiff must plead
and substantiate a legally cognizable claim for relief. (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) “‘Put another way, the plaintiff “must
demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited.â€â€™ [Citation.]â€
(Ibid.) The evidence favorable to the plaintiff is
accepted as true in this analysis, while the defendant’s evidence is evaluated
to determine if it defeats the plaintiff’s claim as a matter of law. (Flatley,
supra, 39 Cal.4th at pp. 323,
326.) The motion will not be granted
unless both prongs of the statute are established. (Navellier,
supra, 29 Cal.4th at p. 89.)
We review an order granting or denying a special motion to strike de
novo, engaging in the same two-step process as the trial court to determine if
the parties have satisfied their respective burdens. (Flatley,
supra, 39 Cal.4th at p. 325; Tuszynska
v. Cunningham (2011) 199 Cal.App.4th 257, 266-267.)
Thus, the trial court’s ruling here
was correct if (1) the causes of action in Hernandez’s complaint were based on
acts protected by section 425.16, and (2) Hernandez failed to establish
there was a probability he would prevail on the merits of his causes of action.
Analysis
As far as we can discern from
Hernandez’s complaint and brief, his arguments all relate to statements
Levatino made during judicial proceedings, i.e., the dissolution of marriage
proceedings during which Levatino represented Wife. Hernandez does not suggest otherwise in his
brief. Accordingly, we need not dwell on
the first element in the analysis as it appears the trial court correctly
concluded Levatino was entitled to the protection of section 425.16.
Instead, Hernandez apparently
argues there is a probability he will prevail on the merits, i.e., the
complaint is legally sufficient and there is a prima facie showing of facts
sufficient to sustain a judgment in his favor.
There are three overriding, and oft repeated, themes in Hernandez’s
attempts to establish an entitlement to relief.
1. Sale of the family residence
The first theme is Hernandez’s
allegation that the family residence was sold below its fair market value. According to Hernandez, this occurred because
(1) the family residence was “marketed†as a three-bedroom home even though it
was a five-bedroom home; (2) the extra two bedrooms existed because the garage
was converted into two bedrooms; (3) the conversion was completed with permits
properly obtained from the appropriate governing agency; and (4) someone
mistakenly believed the conversion was not done with the proper permits.
As we have made clear in the
preceding paragraph, these are allegations made by Hernandez, not facts that
have been found true by any tribunal. We
do not know if they are true or false, nor is it necessary for us to reach a
conclusion to resolve this issue. We are
merely repeating Hernandez’s allegations.
This clarification is necessary because Hernandez has demonstrated a
habit of taking statements out of context and interpreting opinions, including
the opinion from this court in the last appeal he filed, as standing for
unreasonable and incorrect propositions.
Returning to Hernandez’s argument,
our observations are as follows.
Hernandez has not presented any competent evidence that this
discrepancy, if it existed, affected the market value of the home. His assertions simply are not competent
evidence. Nor has Hernandez explained
why this issue was not dealt with at the time the house was marketed.
Included in the record is a letter
dated August 18, 2003, from Hernandez’s attorney’s office to the real estate
agent who handled the transaction stating Hernandez was concerned because the
home was being marketed as a three-bedroom home and also asserting the garage
conversion was permitted properly. There
is no evidence that either Hernandez or his attorney followed up on the
issue. This record suggests the issue
was discussed and resolved before the sale.
Finally, if the issue was not
resolved, Hernandez has not, and cannot, provide any rational explanation why
he did not do so before the house was sold.
We emphasize the sale closed in October 2003. The sale proceeds were divided shortly
thereafter, with various adjustments being made to each party’s portion of the
proceeds. If the sales price of the home
was an issue, Hernandez could have, and
should have, objected at that
time. If Hernandez had any question
about the sales price, he should have investigated before the offer was
accepted. There is no possible
justification for waiting years to address the issue. These observations establish beyond any
possible doubt there is no merit to this argument.
We also note that there is no
evidence Levatino had any involvement in the marketing of the home. He cannot be liable to Hernandez for
something he did not do. Whether he was
involved is now moot. When he opposed
the motion at issue here, Hernandez was required to provide evidence that
Levatino was responsible in some manner for the marketing of the home. It is now too late to claim such evidence
exists.
2. Sale of the 2000 Ford Windstar Van
The next issue on which Hernandez
focuses is the sale of the van.
Hernandez contends Wife sold the van approximately four months after he
filed a petition for legal separation.
According to Hernandez, Levatino represented to the trial court that the
van was sold “during [the] marriage.â€
According to Hernandez, this misrepresentation to the trial court
constituted fraud by Levatino. Hernandez
also repeatedly asserts the van was never sold.
The record belies Hernandez’s
contention. Included in the documents
Hernandez filed with the trial court is a copy of the check in the amount of
$12,300 from Heritage Ford to Wife documenting Wife’s sale of the van. Hernandez’s claim that Wife never sold the
van simply is wrong.
Hernandez’s assertion that Levatino
misrepresented facts to the trial court is similarly meritless. The record demonstrates the parties agreed the van was community property, Wife sold the van,
and Wife retained the proceeds from the sale. No party suggested otherwise. Whether the van was sold before or after
Hernandez filed his petition for legal separation is irrelevant.
Even if Hernandez’s assertion that
Levatino told the trial court the van was sold during the marriage is true, a
contention on which we have no opinion, it was not material and could not form
the basis for a lawsuit. An action for
fraud must be based on a material representation. (People
ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921, 947.) It is absurd to claim the “representationâ€
that the van was sold during the marriage was material, relevant, or
significant in any way.
Since the parties agreed the van
was a community asset and was sold by Wife, the only relevant and material
issues were the sales price and the division of the proceeds. The record establishes that during the dissolution
proceedings Hernandez knew the van had been sold and negotiations occurred over
the division of the proceeds. If
Hernandez was dissatisfied with the manner in which either issue was resolved,
he should have filed a motion in the trial court before the proceeds were
divided. There is no possible
justification for waiting years to address the issue.
Hernandez also seems to suggest
Wife was required to obtain permission from the trial court before she sold the
van. If so, Hernandez should have
addressed that matter to the trial court immediately. Once again, there is no possible
justification for waiting years to address the issue.
3. Levatino’s “appointment†as a trustee
Hernandez repeatedly asserts the
trial court appointed Levatino to act as a trustee for Wife and him, thus
imposing on Levatino a fiduciary
obligation to Hernandez. This is
simply wrong.
The trial court signed an order
based on a stipulation reached between Hernandez and Wife. The stipulation provided the family residence
would be sold, named a realtor to market the property, required all sale
proceeds to be deposited into Levatino’s client trust account, and required the
parties to agree on the division of the sale proceeds. A later stipulation by the parties provided
each party would receive certain credits and debits before the remaining
proceeds were divided equally. This
stipulation was signed by Hernandez, his attorney, and made an order of the
court. And this is exactly what
occurred. The proceeds from the sale were
deposited into Levatino’s client trust account and the funds were disbursed
pursuant to the stipulation signed by Hernandez and his attorney. These events were completed by early 2004.
These facts establish (1) Levatino
was not a court-appointed trustee; (2) Levatino was not a trustee for
Hernandez; (3) Levatino did not owe Hernandez a fiduciary duty; (4) if
Hernandez was dissatisfied with the division of the sale proceeds or the sale
price of the residence, a motion should have been filed with the trial court at
the time the events occurred (2003); (5) there is no possible justifiable
reliance by Hernandez on Levatino because Hernandez was represented by counsel
during this transaction; and (6) there is no possible justification for waiting
years to address the issue(s).
Conclusion
In the final analysis, despite
Hernandez’s exhaustive and emotional presentation, there is no possibility he
would have prevailed on the merits of the complaint. Thus, he did not carry his burden on
Levatino’s motion, and the trial court properly struck the complaint.
II. Request for Judicial Notice
The next issue we discern from
Hernandez’s brief is his assertion the trial court erred when it denied a
portion of his request for judicial notice and his subsequent request for reconsideration.
Hernandez’s request for judicial
notice filed in the trial court also is difficult to understand. It appears Hernandez was asking the trial
court to enter an order that various allegations made in Hernandez’s complaint
were true as a matter of law.
Specifically, Hernandez asserted the following acts allegedly committed by Levatino were undisputed “factsâ€:
(1) Failed to protect Hernandez’s rights to his
property;
(2) Failed to provide to Hernandez all the monies
to which he was entitled;
(3)
Failed to ensure that Hernandez received some
unidentified vehicle pursuant to the
agreement of the parties;
(4) Concealed the whereabouts of the van;
(5) Deceived Hernandez by asserting the van was
sold;
(6) Deceived the trial court by claiming the van
was sold.
(7) Favored Wife’s interests over Hernandez’s
interests;
(8) Treated Hernandez unfairly with respect to the
division of marital assets; and
(9)
Improperly sold the family residence below market value
by marketing it as a three-bedroom home instead of a five-bedroom home.
To support the assertion that these
“facts†were undisputed, Hernandez submitted a second request for judicial
notice with various documents attached.
The first group of documents appears to be from the California Department
of Motor Vehicles. They relate to a 2000
Ford, which we assume is the van to which Hernandez repeatedly refers, although
this fact is never established. The
first document in this group appears to be a registration form indicating Jerry
and Linda Davis as owners of the vehicle.
The second document in this group is titled “Application for Transfer by
New Owner.†The new registered owners on
this document are Jerry and Linda Davis, and the seller listed on the transfer
is Heritage Ford. The document is dated
December 23, 2001. The third document in
this group is a certificate of title showing the registered owner as Hernandez
or Wife, which was signed by Wife on September 13, 2001, transferring the van
to Heritage Ford. The final documents
relate to the sale of the vehicle to Davis.
The next document attached to the
request for judicial notice appears to be a permit from the Stanislaus County
Public Works Department related to the conversion of the garage to two bedrooms
and which we presume is related to the family residence.
The last three documents attached
to the request are various court documents, to which Levatino did not
object. The trial court granted the
request for judicial notice as to the court documents, but denied the remainder
of the request.
Governing statutes
Requests for judicial notice are
governed by Evidence Code sections 450 through 453. Errors in denying judicial notice, if any
occurred, are subject to harmless error analysis. (Aquila,
Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569.) Evidence Code sections 451 and 452 are
relevant here.
Evidence Code section 451 requires
the trial court to take judicial notice of the following six categories of
items:
(1)
The decisional, constitutional, and statutory laws of California and the
United States.
(2)
“Any matter made a subject of judicial notice by†Government Code
sections 11343.6, 11344.6, or 18576, or “by section 1507 of Title 44 of the
United States Code.â€
(3)
Rules of professional conduct for members of the State Bar.
(4)
Rules of pleading, practice, and procedure of the federal judicial
system.
(5)
“The true signification of all English words and phrases and of all
legal expressions.â€
(6)
“Facts and propositions of generalized knowledge that are so universally
known that they cannot reasonably be the subject of dispute.†(Evid. Code, § 451, subds. (a)-(f).)
Evidence Code section 452 gives the
trial court discretion to take judicial notice of the following eight
categories:
(1) The decisional law and statutes of other states,
as well as acts of Congress.
(2) Regulations and legislative enactments of the
federal government or any other public entity.
(3) Official acts of the federal government or
any other state.
(4) Records of any court in California, the
United States, or any other state.
(5) Rules of court of any court in California,
the United States, or any other state.
(6) The laws of an organization of nations and
public entities in foreign nations.
(7) “Facts and propositions that are of such
common knowledge within the territorial jurisdiction of the court that they
cannot reasonably be the subject of dispute.â€
(8) “Facts and propositions that are not
reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy.†(Evid. Code, § 452, subds. (a)-(h).)
Analysis
None of Hernandez’s assertions fall
within the requirements of Evidence Code section 451. The only possible applicable category would
be subdivision (f) of this section, which requires the trial court to take
judicial notice of facts and proposition that are universally known. These facts would include such matters as
there are 5,280 feet in a mile, or 60 minutes in an hour, or 31 days in
January. Hernandez’s assertions do not
fit within this category.
Also, Hernandez’s assertions do not
fit within any of the requirements of Evidence Code section 452. His
assertions are not propositions of common knowledge, nor are they “not
reasonably subject to dispute.†Indeed,
Hernandez’s assertions fall into the opposite category—propositions that
would require a trial to resolve if they
had been raised timely. Because they
were not raised timely, as explained above, these assertions no longer have any
legal significance.
We now turn to the documents
submitted by Hernandez. Exhibit A is the
group of documents that appear to be from the California Department of Motor
Vehicles. The documents appear to have
been stamped with the seal of the department.
These documents, however, were not properly authenticated as required by
Evidence Code section 1531. Moreover,
Hernandez failed to provide admissible evidence that these documents were
indeed related to the van in question.
Accordingly, the trial court did not err in refusing to grant judicial
notice to these documents. Even if there
were error, any error would be harmless, as explained above.
The other items submitted by
Hernandez appear to be the permit to convert the garage of the family residence
into two bedrooms. Again, this document
was not properly authenticated pursuant to Evidence Code section 1531. Moreover, this document appears to be nothing
more than a permit application.
Accordingly, the trial court did not err and any possible error was
harmless as explained above.
Motion for reconsideration
Finally, we address Hernandez’s
motion for reconsideration of the trial court’s denial of his request for
judicial notice. In this motion,
Hernandez presented additional documents and attempted to present testimony to
establish that the documents were related to the van and to the residence
remodel. The trial court denied the
motion.
Motions for reconsideration are
governed by section 1008. Subdivision
(a) of this section provides, as relevant here, that when an application for an
order has been refused in whole or part, any party affected by the order may
make an application to the judge to reconsider the matter and make a new order. The application must be based on “new or
different facts, circumstances, or law,†and it must be made “within 10 days
after service upon the party of written notice of entry of the order.†(Ibid.)
The trial court denied Hernandez’s
application because it was untimely. The
initial order denying Hernandez’s request for judicial notice was issued on
March 8, 2012. The minute order was
served on March 9, 2012. No notice of
entry of order appears in the record.
The trial court thus erred to the extent it denied the motion on the
basis that it was untimely.
Nonetheless, there was no merit to
the motion. “A motion for reconsideration may only be brought if the
party moving for reconsideration can offer ‘new or different facts,
circumstances, or law’ which it could not, with reasonable diligence, have
discovered and produced at the time of the prior motion. [Citations.]
A motion for reconsideration will be denied absent a strong showing of
diligence. [Citation.]†(Forrest
v. Department of Corporations (2007) 150 Cal.App.4th 183, 202-203,
disapproved on other rounds in Shalant v.
Girardi (2011) 51 Cal.4th 1164, 1172, fn. 3.)
The additional documents on which Hernandez based his
motion for reconsideration were all related to the remodel of the family
residence, which occurred in approximately 1999, or the sale of the van, which
occurred in 2001. Hernandez did not
attempt to establish that he was diligent in seeking these documents, nor can
we envision any possible explanation that would satisfy the diligence
requirement.
Hernandez applied for the permits to remodel the family
residence and was aware that the process occurred. This is substantiated by the 2003 letter from
his attorney to the real estate broker hired to sell the house making her aware
that the conversion was properly permitted.
Hernandez could have obtained all of the relevant records from the
building department as soon as the issue arose, yet failed to do so. He was not diligent.
The same conclusion is reached when the sale of the van is
considered. Hernandez alleged that he
did not receive proper credit from the proceeds of the sale of the van. If this truly were an issue, and it is not,
the documents could have been obtained at that time, which was no later than
2004. Again, Hernandez’s failure
diligently to seek these documents precluded the trial court from granting his
motion for reconsideration.
DISPOSITION
The judgment is affirmed.
Levatino is awarded his costs on appeal.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
PEÑA, J.
further statutory references are to the Code of Civil Procedure unless
otherwise stated.
notice of appeal also states Hernandez is appealing from the order denying him
a “Right to Attach.†We have reviewed
Hernandez’s brief and find no reference to a “Right to Attach.†Accordingly, if this were an issue, Hernandez
has forfeited it because of his failure to provide any argument or cite any
authority. (In re S.C. (2006) 138 Cal.App.4th 396, 408.) We also did not locate any documents in the
record that would suggest an attachment was sought in this case.
