Filed 11/16/18 Ryan v. Rosenfeld CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Steve Ryan sued Mitchell Rosenfeld and related parties for causes of action that grew out of a real estate investment partnership. Four years later, when the case was called for trial, Ryan’s attorney was not ready to proceed, and Ryan himself was absent from court, hospitalized in Tijuana, Mexico. The trial court dismissed the action for delay in prosecution. (Code Civ. Proc.,[1] § 583.410, subd. (a).) Two months later, Ryan filed a motion to vacate the dismissal under section 473, which was denied. He now appeals from that denial but has not provided us with a sufficient record to assess the judge’s reasons for denying the motion. As a result, we find he has forfeited his only issue on appeal, and we will affirm the order denying Ryan’s motion to vacate.

1. BACKGROUND

On October 29, 2010, Ryan filed a complaint against Mitchell Rosenfeld and various other defendants,[2] seeking damages and the dissolution of a real estate partnership. Four times, the superior court issued orders to show cause why sanctions should not be imposed for Ryan’s failure to serve the complaint upon defendants. The trial court also twice continued the last order-to-show-cause hearing.

Ryan filed a first amended complaint on June 19, 2012. On February 14, 2013, the court set the trial date for September 9, 2013. But Ryan objected to that trial date, so the trial court reset the trial date to December 2, 2013.

Then, on October 18, 2013, Ryan moved to continue the trial date. His attorney, Leo LaRocca, had withdrawn as Ryan’s attorney due to “irreconcilable differences,” and Ryan needed more time to find substitute counsel. The trial court granted the motion and continued the trial until March 3, 2014.

On January 21, 2014, Ian Kelley substituted in as Ryan’s counsel. About a month later, on February 19, 2014, Ryan moved again to continue the trial date. Again, the trial court granted the motion and continued the trial until October 20, 2014.

A month before the trial date, on September 19, 2014, Kelley moved to be relieved as Ryan’s counsel due to “a considerable erosion of the attorney-client relationship . . . .” Kelley maintained his withdrawal was mandatory under rule 3-700(B) of the Rules of Professional Conduct[3], which requires withdrawal if the lawyer learns the client is pursuing the action to harass or maliciously injure another person, if other ethical dilemmas are presented, or if the attorney’s own physical or medical condition makes it unreasonably difficult to fulfill his professional responsibilities. The matter was discussed in camera, so we have no details about the facts underlying Kelley’s position, but Ryan opposed the withdrawal motion unless he could get a continuance of the trial. Kelley did request that trial be continued for 120 days so that Ryan could obtain new counsel. Ryan, in opposing Kelley’s withdrawal, alleged that Kelley had been planning to file a motion to withdraw since July 2014, but had delayed so long that Ryan would be left without counsel just one month prior to trial. Ryan asserted he had tried to find an attorney to substitute in for the trial but was unable to find anyone to take on the case without a continuance. He requested a six-month continuance of the trial date. On September 30, 2014, the trial court denied the motion to withdraw and the request for a continuance.

Three days after the denial, Ryan filed another motion to continue the trial. Ryan told the court his wife, who lived with the couple’s two children in Tijuana, Mexico, had been hospitalized there following a suicide attempt. Ryan said he had to care for their two children in Mexico and could not be present at trial on October 20. He also claimed he was so distraught over his wife’s suicide attempt that he was incapable of assisting his attorney in trial preparation. The trial court, on October 16, 2014, denied this continuance request as well.

The next day, Kelley filed a petition for a writ of mandate or prohibition in this court on Ryan’s behalf—including a request for an immediate stay of the October 20th trial date—asserting the same grounds: the hospitalization of Ryan’s wife and his need to care for their children. This court denied an immediate stay and ultimately denied the writ petition as well.

On the first day of trial, October 20, 2014, Kelley submitted a trial readiness statement declaring he was not prepared for trial and requesting a 45-day continuance to allow him to prepare with his client’s assistance. The statement was accompanied by several declarations from Ryan’s doctor in Sacramento describing Ryan’s physical and mental symptoms, evidently communicated to him by Ryan from Mexico, that caused the doctor to “insist[]” on October 18 that Ryan admit himself to the nearest hospital for a full evaluation. There was no evidence the doctor actually examined Ryan before recommending he check himself into a hospital. Nevertheless, the doctor concluded that Ryan was in “no condition to partake in legal hearings or a trial at this time” because he “lacks the mental capacity required to do so.” There was no evidence the doctor was a specialist in mental health. Kelley’s readiness statement was based in large part on Ryan’s hospitalization due to chest pains and distraught feelings about his “home situation.” The trial court denied the motion to continue and granted Rosenfeld’s motion to dismiss the case for delay in prosecution under section 583.410, subdivision (a), which reads: “The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”

Although he was still technically represented by Kelley, Ryan filed a pro se motion for reconsideration of the dismissal order on November 4, 2014, and an amended motion on November 19, setting the hearing for December 18, 2014. The motion appended exhibits indicating Ryan had purchased a one-way airline ticket from San Diego to San Francisco at approximately 6 p.m. on October 17 and had canceled that ticket purchase by 2 p.m. the next day, receiving a full refund. His exhibits showed he had been hospitalized in Mexico at 2:45 p.m. on October 18, 2014, due to chest pain, dizziness, ear ringing, and abnormal arm sensations. He was discharged five days later, with prescriptions for high blood pressure, depression, and dyspepsia. The trial court denied the amended motion as untimely and because it did not meet the requirements of section 1008, subdivision (a).

On December 5, 2014, Ryan formally took over his own representation from Kelley. Then, on December 22, 2014, Ryan filed a motion to vacate the dismissal based upon sections 663 and 473. After several continuances, the motion was heard on May 11, 2015, and denied on May 22, 2015. The trial court denied the motion because (1) it was untimely under section 663; (2) “nothing ha[d] changed since the Court dismissed Plaintiff’s action;”[4] and (3) Ryan did not “meet his burden” to show attorney abandonment under section 473 because Kelley had “fought valiantly, above and beyond the call of duty, to continue the trial although unsuccessfully.”

Ryan filed a notice of appeal, purporting to appeal both the dismissal order and the denial of his motion to vacate that dismissal. This court dismissed the appeal of the dismissal order as untimely and ruled that the motion to vacate was not appealable. The Supreme Court, however, granted review and ruled that motions to vacate under section 663 are appealable. (Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 127.)

Upon remand, after Rosenfeld’s renewed motion to dismiss the appeal, this court ruled the appeal was untimely insofar as the motion to vacate was based on section 663. But we ruled the appeal could proceed under section 473.

2. DISCUSSION

Section 473, subdivision (b), provides that a “court may, upon any terms as may be just, relieve a party of his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Ryan’s motion to vacate claimed that two circumstances—his attorney’s abandonment and his hospitalization—constituted excusable neglect.

Ryan argues that, because the trial court’s written order did not mention his hospitalization, the trial court “failed to exercise its discretion based on” that ground, which “necessarily constitutes an abuse of discretion . . . .” In any event, he argues, it was an abuse of discretion to deny his motion under section 473.

On appeal, Ryan bears the burden to show the trial court erred in denying his motion. (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1398 (Generale Bank Nederland).) Appellate review “under section 473 is quite limited.” (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118.) We will reverse only upon “a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice.” (Ibid.) True, an order denying relief under section 473 is “ ‘scrutinized more carefully’ ” than an order granting relief. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.) Nevertheless, so long as the trial court did not “ ‘ “ ‘exceed[] the bounds of reason[,] . . . the reviewing court has no authority to substitute its decision for that of the trial court.’ ” ’ ” (Eben-King & King, at p. 118.)

Because we do not have a full record of the court’s reasoning before us, we are unwilling to accept the court’s written order as conclusive proof that the court did not consider Ryan’s medical claim. Section 473, subdivision (b), does not require an order to include express factual findings. (Generale Bank Nederland, supra, 61 Cal.App.4th at pp. 1398–1399; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1272 (Laabs) [stating the “general rule that findings of fact are not required in connection with law and motion matters”].) Thus, we may presume the trial court considered Ryan’s hospitalization and rejected it as a basis for vacating the judgment, but just did not mention it in the order. (Generale Bank Nederland, at p. 1399.) Indeed, the record indicates the court was aware of the issue, since its order states the court “considered the moving papers and arguments of the parties,” which addressed the facts surrounding Ryan’s hospitalization. Ryan’s moving papers featured prominently his recitation of the facts surrounding his hospitalization, and the same judge had earlier reviewed an extensive documentary submission in connection with Ryan’s untimely motion for reconsideration, which was devoted almost entirely to Ryan’s medical issues. It is practically inconceivable that the trial judge did not consider Ryan’s claimed medical difficulties in ruling on the motion to vacate. Given the flurry of attempts to delay the trial shortly before it was set to begin, and since Ryan’s admission to the hospital was self-initiated, the judge may have believed Ryan checked himself into a hospital just for the purpose of again avoiding the start of trial, a trial he had postponed repeatedly already.

Fundamentally, the trial court’s order “ ‘ “is presumed to be correct on appeal . . . .” ’ ” (Generale Bank Nederland, supra, 61 Cal.App.4th at p. 1398.) “[W]here the record is silent, we must indulge all intendments and presumptions to support the challenged ruling.” (Laabs, supra, 163 Cal.App.4th at p. 1271.) One of these presumptions is “that the trial court made all factual findings necessary to support the order or judgment.” (Ibid.) Ryan could overcome that presumption only by “providing a record that establishes error . . . .” (Ibid.) Indeed, the appellant always “has the burden of producing a record which overcomes the presumption of validity favoring a judgment or order.” (Weiss v. Brentwood Sav. & Loan Assn. (1970) 4 Cal.App.3d 738, 746.) This Ryan failed to do. He produced no reporter’s transcript of the hearing on May 11, 2015, and the register of actions shows the hearing was “not reported.” Nothing further was submitted by Ryan to make up for the absence of a reporter’s transcript.

It is entirely possible the trial judge expressly rejected Ryan’s hospitalization as a basis for granting the motion to vacate, either because she disbelieved Ryan’s hospitalization was medically necessary or for other reasons not amounting to an abuse of discretion. The trial court was allowed to assess credibility on the motion under section 473. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.) It was “not bound to accept as true the sworn [declaration of Ryan,] even in the absence of evidence contradicting it . . . .” (Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1017, fn. 7; see also, Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890.) Indeed, even if she made no explicit finding in the hearing, we would conclude the judge impliedly found Ryan’s hospitalization was no basis for vacating the judgment. (Laabs, supra, 163 Cal.App.4th at p. 1271.)

When an appellant fails to present an adequate record for review, it “ ‘results in affirmance of the trial court’s determination.’ ” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201 [the “cornerstone” of several of the appellant’s arguments involved what occurred at a particular hearing, but she provided no reporter’s transcript of that hearing; held, appellant failed to demonstrate error under § 473, subd. (b)].) Ryan has not submitted an agreed or settled statement, and it is too late for him to do so. (See In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 8–9; Cal. Rules of Court, rules 8.134(b)(2)[5] [agreed statement must be filed “within 40 days after filing the notice of appeal”] & 8.137(a) [where the designated oral proceedings were not reported, appellant’s election to use a settled statement must be specified in the notice designating the record on appeal]; see also, rule 8.130(h).)

Ryan argues we should ignore the missing transcript, asserting the error “appears on the face” of the record, so that rule 8.163 would authorize us to “presume that the record [as filed] . . . includes all matters material to deciding the issues raised.” That rule continues: “If the appeal proceeds without a reporter’s transcript, this presumption applies only if the claimed error appears on the face of the record.” (Rule 8.163.) “The last sentence was not in the rule when it was adopted in 1943, and it was added in 1951 to make it clear that there was no intent to allow unwarranted presumptions against the judgment. If, on appeal on a judgment roll or clerk’s transcript, the error urged by the appellant does not appear on the face of the record, all intendments will be made in support of the judgment, as was the case prior to the adoption” of the precursor to rule 8.163. (Dumas v. Stark (1961) 56 Cal.2d 673, 674.)

The error claimed here, being one of alleged omission—omission to mention Ryan’s hospitalization in the order—does not “appear on the face” of the order. Where an appeal is taken without a reporter’s transcript, “the omission to make a finding on an issue raised by the pleadings is not a ground for reversal.” (Garwick v. Gordon (1953) 121 Cal.App.2d 247, 250; accord, Coleman v. Mora (1968) 263 Cal.App.2d 137, 154; Arruda v. Arruda (1963) 218 Cal.App.2d 410, 416; D’Alessio v. D’Alessio (1942) 56 Cal.App.2d 118, 120.) Without either a reporter’s transcript or a substitute from which to glean what was said at that hearing, we are bound by the presumption that the order was correct.

“The absence of a record concerning what actually occurred at the hearing precludes a determination that the court abused its discretion.” (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [hearing under § 473, subd. (b)].) Because this court “must therefore presume that what occurred at that hearing supports the judgment” (Hearn v. Howard, supra, 177 Cal.App.4th at p. 1201), Ryan “forfeited this argument on appeal” (Wagner, at p. 259).

3. DISPOSITION

The order denying Ryan’s motion under Code of Civil Procedure section 473 is affirmed. Respondents shall recover their costs on appeal.

_________________________

Streeter, Acting P.J.

We concur:

_________________________

Tucher, J.

_________________________

Reardon, J.*

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