Filed 2/27/18 Fichter v. Byrd CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR



VIN A. FICHTER et al.,

Plaintiffs and Respondents,

v.

TYRONE G. BYRD,

Defendant and Appellant. B270418
(Los Angeles County
Super. Ct. No. LC101802)



APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth A. Lippitt, Judge. Affirmed as modified.
Law Office of Vin A. Fichter and Vin A. Fichter for Plaintiffs and Respondents.
Tyrone G. Byrd, in pro. per., for Defendant and Appellant.


Respondents Vin A. Fichter and his firm, The Law Office of Vin A. Fichter, obtained a judgment against appellant Tyrone Byrd for attorney fees owed by appellant to respondents. Appellant, acting in pro. per., seeks reversal of the judgment on multiple grounds, including lack of substantial evidence to support it. However, appellant did not supply a reporter’s transcript or any equivalent. Accordingly, we cannot review the sufficiency of the evidence. We do address other grounds for reversal raised by appellant and conclude his due process rights were not violated, Fichter did not violate procedure or defraud the court by including the law office as a separate party, and the trial court did not err in refusing to impose terminating sanctions on respondents for failing to comply with the final status conference order. We agree with appellant, however, that costs were added to the judgment prematurely and without authority. Accordingly, we strike the costs, but otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND
In June 2014, respondents brought suit against appellant and two other parties seeking payment for legal services rendered by respondents under theories of breach of written contract, breach of oral contract, quantum meruit, and several common counts, including account stated and open book account. Respondents alleged they were retained in 2010 to perform legal services in connection with an Orange County lawsuit. Defendants allegedly agreed to compensate respondents at the rate of $325 per hour, and to reimburse respondents for all costs and expenses. The complaint alleged that respondents had billed $166,325.74, defendants had paid $45,300.70, and that the amount of $121,025.04 remained due and owing.
In October 2015, several months prior to trial, appellant moved in limine to dismiss respondents’ complaint or exclude invoices submitted by respondents on the ground they failed to comply with any of the requirements of the court’s final status conference order, including exchanging exhibits. Appellant also claimed that some of the invoices respondents wished to introduce into evidence were inaccurate copies of invoices he received. At a non-jury trial on December 17, 2015, the court did not expressly deny the motion, but did so implicitly, permitting the case to go forward and admitting the invoices after providing appellant ten minutes to review them. A number of other exhibits were admitted, and Fichter and appellant testified.
Following trial, the court took the matter under submission. On December 21, 2015, the court issued its ruling, finding in favor of respondents. The court specifically found that respondents met their burden of proof on the causes of action for account stated, open book account and breach of contract. It found that appellant was entitled to a discount if he paid timely, but that respondents “did not bill [appellant] on a timely basis.” Accordingly, the court discounted the claim, awarding $90,768 for attorney fees and adding $48,044.41 for “service charges.”
On January 29, 2016, respondents filed a memorandum of costs, requesting $729.11. The memorandum of costs was served by mail on appellant on January 26, at his address in Hawaii.
The clerk of the court entered judgment against appellant on February 8, 2016 in the amount of $139,541.52, consisting of the $90,768 in fees and $48,044.41 in service charges awarded by the court, and $729.11 for costs. This appeal followed.

DISCUSSION
Appellant contends that respondents did not meet their burden of proof on the causes of action for open book account, account stated or breach of contract. Appellant further contends his due process rights were violated and respondents committed fraud on the court because: (1) The Law Office of Vin A. Fichter was not a legal entity, and Fichter had no standing to pursue the matter in his own name; (2) the court did not enforce the final status conference order or the local rules governing final status conferences, rendering that procedure meaningless, as appellant was not provided respondents’ exhibits or trial brief prior to trial; (3) the court admitted exhibits not exchanged at the final status conference; (4) costs were entered prior to the running of the time in which a motion to tax costs could be filed; (5) trial was delayed several times without sufficient notice to appellant and assigned to a judge unfamiliar with the facts; (6) respondents disregarded the court’s order requiring the judgment to be prepared and submitted by January 4, 2016; and (7) the claim for breach of oral contract was time barred.
We are unable to address appellant’s contentions that substantial evidence did not support the trial court’s findings on respondents’ claims for account stated, open book account and breach of contract, because appellant failed to supply a reporter’s transcript or its equivalent (agreed statement or settled statement). Without a proper record we can neither review the sufficiency of the evidence nor make a finding that the court erred. (See Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362 [it is appellant’s burden to present an adequate record for review]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [absent a reporter’s transcript or equivalent, “it is presumed that the unreported trial testimony would demonstrate the absence of error”]; Mitchell v. City of Indio (1987) 196 Cal.App.3d 881, 890 [“‘In reaching a decision on appeal an appellate court is governed by the record; [it] will not consider facts having no support in the record; and will disregard statements of such facts set forth in a brief’”]; see also Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“‘A judgment or order of the lower court is presumed correct’” (italics omitted)].) Put another way, unless error is apparent on the face of the existing appellate record, “the judgment must be conclusively presumed correct as to all evidentiary matters,” and we must assume that “the unreported trial testimony would demonstrate the absence of error. [Citation.]” (Estate of Fain, supra, at p. 992, italics omitted.) “The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript [or agreed or settled statement] will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]” (Ibid.)
The absence of a reporter’s transcript or its equivalent does not preclude us from addressing other contentions. Appellant contends that The Law Office of Vin A. Fichter is not a legal entity of any kind, and that Fichter defrauded the court by naming his law firm as a plaintiff. Conversely, he contends that Fichter lacked standing to pursue the action, presumably because the fee agreement was with the law office. Fichter did not defraud the court. Paragraph 4 of the complaint stated that “The Law Office of Vin A. Fichter” was a name used by Fichter, a practicing lawyer. Moreover, naming himself, the law office, or both in the complaint was not improper. “‘“Doing business under another name does not create an entity distinct from the person operating the business.”’” (Pinkerton’s, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348, italics omitted.) “‘The business name is a fiction, and so too any implication that the business is a legal entity separate from its owner.’” (Ibid.) Consequently, a party who enters into a contract under the fictitious name “[is] the contracting party, and [is] entitled to pursue an action to collect for the work done pursuant to the contract.” (Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694, 701; see also Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 943 [individual who owns assets of sole proprietorship is “personally liable for all debts and responsibilities incurred by the business,” and “the assets of a sole proprietorship business [are his]”].) Naming the sole proprietorship in the complaint is “an entirely acceptable procedure.” (Pinkerton’s, Inc. v. Superior Court, supra, at pp. 1348, 1349 [lawsuit properly brought against party “by suing and serving it under its fictitious business name”].)
Appellant contends that the court should have dismissed the complaint or precluded respondents from admitting the documentary evidence needed to prove their claims because respondents did not comply with the final status conference order or the local rules. We are not persuaded. Trial courts have the power to impose sanctions, including dismissing actions or striking pleadings, if a party fails to comply with its orders or local rules. (Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1060-1061; see Gov. Code, § 68608, subd. (b); Code Civ. Proc., § 575.2; Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758 [California courts have inherent power to dismiss actions “when faced with pervasive litigation abuse”].) However, exercise of the power to dismiss an action or impose other sanctions that would result in termination of the litigation due to a procedural error is “disfavored” (Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 97), and should be limited to “‘extreme circumstances’” of deliberate misconduct “when no lesser sanction would be effective to cure the harm.” (Stephen Slesinger, Inc. v. Walt Disney Co., supra, at p. 760; accord, Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1399 [“‘Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective’”]; Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364 [“[C]ourts ordinarily should avoid treating a curable violation of local procedural rules as the basis for crippling a litigant’s ability to present his or her case”].) Before imposing terminating sanctions, the court should consider the history of the party’s conduct in the case and consider whether less severe sanctions would be effective to assure compliance. (Tliche v. Van Quathem, supra, at pp. 1060-1061; see Gov. Code, § 68608, subd. (b).) Because appellant has failed to provide a full record of the proceedings, we have no basis to conclude the court abused its discretion in rejecting the extreme sanctions appellant sought.
Finally, appellant contends that costs were added to the judgment before the time within which to file a motion to tax costs had expired. This appears to be so. Rule 3.1700(b)(4) of the California Rules of Court provides: “After the time has passed for a motion to strike or tax costs or for determination of that motion, the clerk must immediately enter the costs on the judgment.” Rule 3.1700(b)(1) states: “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.” Section 1013 provides that any right to do any act or to make any response within any period or on a date certain after service of the document “shall be extended . . . 10 calendar days if . . . the place of address is outside the State of California but within the United States . . . .”
The memorandum of costs is in the clerk’s transcript. It was filed-stamped January 29, 2016. According to the attached proof of service, it was served on appellant in Hawaii on January 26, 2016. Twenty-five days after service was February 20, a Saturday. If the last day to perform an act falls on a “holiday,” defined to include Saturdays and Sundays, the time is extended to an including the next day that is not a holiday. (Code Civ. Proc., §§ 10, 12a; Cal. Rules of Court, rule 1.10(a) & (b); Purifoy v. Howell (2010) 183 Cal.App.4th 166, 175.) Thus, appellant had until Monday, February 22 to file a motion to tax costs. The judgment, which included $729.11 in costs, was entered by the clerk prematurely on February 9. Because the clerk lacked authority under Rule 3.1700(b)(4) to enter an order for costs on February 9, the costs awarded must be stricken from the judgment. (See Baird v. Smith (1932) 216 Cal. 408, 410-411 [clerk “‘“derives all his powers from the statute, and. . . in each case it must appear that what he did was within the authority conferred on him by the statute”’”; where clerk “exceeds the limited power conferred upon him by the statute, there is an entire absence of jurisdiction and his action . . . is a nullity and open to attack at any time”]; accord, Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 99, fn. 7 [when clerk manifestly acts beyond his or her statutorily-conferred powers, action is void]; see also Bristol Convalescent Hospital v. Stone (1968) 258 Cal.App.2d 848, 862 [if clerk’s mechanical computation of time elapsed since service was completed is in error and he enters default prematurely, judgment is void and may be set aside at any time, regardless how it comes to the court’s attention].)

DISPOSITION
The award of costs in the amount of $729.11 is stricken from the judgment. The judgment is otherwise affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS




MANELLA, J.

We concur:




WILLHITE, Acting P. J.




COLLINS, J.