Filed 1/26/18 Wholesome Choice Market v. Arefian CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 R. Chaffee, Judge. Affirmed.

Daniel P. Hunt for Plaintiffs, Cross-defendants and Respondents.

Parviz Arefian in pro. per.; Law Office of Cliff Dean Schneider and Cliff Dean Schneider for Defendant, Cross-complainant and Appellant.

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This is an appeal from a judgment after a bench trial. According to the complaint, the underlying dispute arose out of the operation of a food court in a grocery store. Defendant Parviz Arefian owned defendant Paak Foods, Inc., which operated the food court in a grocery store owned by plaintiff Wholesome Choice Market, Inc. (Wholesome Choice). There was a dispute about money defendants owed, and the parties signed a settlement agreement setting forth a particular amount owed. Defendants failed to pay it. Wholesome Choice sued on the settlement agreement, and defendants cross-complained, arguing they signed the agreement under economic duress and that plaintiff had committed fraud. After a bench trial, the court adopted Wholesome Choice’s position and rejected Arefian’s claims and defenses. Arefian appealed.

During the pendency of the appeal, Arefian elected to proceed without a reporter’s transcript. Yet the bulk of his brief consists of arguing the judgment is not supported by substantial evidence, and he supports those arguments with references to a reporter’s transcript we do not have. Because we cannot consider evidence outside the record, we must presume the judgment is supported by adequate evidence. (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 [“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two”]; Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039 [“It is [appellant’s] obligation . . . to present a complete record for appellate review, and in the absence of a required reporter’s transcript and other documents, we presume the judgment is correct”].) Accordingly, we reject Arefian’s substantial evidence claims. Arefian’s remaining contention is that he was denied a fair trial for three reasons.

First, he was forced to go to trial without counsel. The relevant procedural history reveals nothing unfair about that. Arefian consented to a substitution of counsel on July 1, 2015, rendering him in propria persona. The actual trial on Arefian’s claims occurred on January 4, 2016. Arefian offers no explanation why six months’ time was inadequate to find new counsel.

Arefian also contends the trial was unfair because his trial was bifurcated from Paak Foods’ trial. The trial court proceeded that way because Arefian was in bankruptcy at the time of the trial against Paak Foods, and thus the case against Arefian was subject to an automatic stay. Arefian offers no explanation as to why this rendered his trial unfair. He summarily states, “The Court only heard a portion of the dispute because evidence regarding Paak could not be introduced at the Arefian trial.” But Arefian does not explain what evidence was excluded as a result of Paak Foods’ absence.

Finally, Arefian complains that his case should have been heard before a jury. But he waived a jury trial. (See Code Civ. Proc., § 631, subd. (f)(3).) There is nothing in the record stating that he objected to proceeding without a jury. (Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893, 900 [“‘a party cannot without objection try his case before a court without a jury, lose it and then complain that it was not tried by jury’”].) There was no error.

DISPOSITION

The judgment is affirmed. Wholesome Choice shall recover its costs incurred on appeal.

IKOLA, J.

WE CONCUR:

MOORE, ACTING P. J.

FYBEL, J.