Filed 5/18/20 Dogan v. Beecroft Properties CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ELENA DOGAN,

Plaintiff and Appellant,

v.

BEECROFT PROPERTIES LLC et al.,

Defendants and Respondents.

D075221

(Super. Ct. No. 37-2016-00003996-

CU-FR-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed.

Elena Dogan, in pro. per., for Plaintiff and Appellant.

Hartsuyker, Stratman & Williams-Abrego and Danny Grant; and Law Offices of Roxanne Huddleston and Roxanne Huddleston for Defendants and Respondents.

Plaintiff Elena Dogan, a resident of the Comanche Hills apartment complex, filed two lawsuits against various defendants involved in the ownership and management of the complex. One was a 2015 personal injury claim arising from a slip-and-fall accident on the property. The second, this 2016 action, alleged fraud and other claims concerning utility and maintenance charges. Both cases went to trial without the presence of a court reporter, and both were resolved against Dogan when the respective trial courts granted defense motions for nonsuit.

In Dogan v. Comanche Hills Apartments, Inc. (2019) 31 Cal.App.5th 566 (Dogan I), we reversed the first of those nonsuits based on the California Supreme Court’s then-recent decision in Jameson v. Desta (2018) 5 Cal.5th 594 (Jameson). We held that reversal was required because Dogan—a fee waiver recipient—had requested but been denied a waiver of court reporter fees, and this made it effectively impossible for her to obtain the services of the official court reporter to which she was entitled under Jameson. (Id. at p. 568.)

Raising different claims against many of the same defendants, Dogan’s primary argument on this appeal is that the nonsuit must be reversed for the same reasons articulated in Dogan I. But there are two significant differences between this case and the earlier one. The first is contextual. The trial in Dogan I took place before Jameson was decided; the trial in this case occurred more than a month after the Jameson decision was filed. Second, and more importantly, the record in Dogan I established that Dogan had specifically requested and been denied a waiver of the otherwise required court reporter fees. But the record in this case appears to show exactly the opposite—that Dogan was granted a waiver of court reporter fees. Dogan points to the lack of a court reporter at trial as evidence that the fee waiver was not honored, but that is speculation. It remains Dogan’s burden as the appellant to demonstrate that an error has occurred. Here, despite the court granting her a waiver of court reporter fees, she did not make any objection on the record to the lack of a reporter at trial. Neither did she file anything with the court bringing the Jameson decision to the attention of the trial judge.

Because Dogan has failed to establish error by the trial court regarding the lack of a court reporter or otherwise, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

As was true in Dogan I, the issues before us on appeal require only an abbreviated summary of the underlying facts. (See Dogan I, supra, 31 Cal.App.5th at p. 568.) Dogan filed this lawsuit in February 2016 against Beecroft Properties LLC, Comanche Hills Apartments, Inc., and Warren Beecroft. Janet Horn (the regional director of Comanche Hills) and Lisa Pryor (the resident manager) were originally named as defendants but dismissed before trial. Dogan broadly alleged that defendants had engaged in unlawful and fraudulent practices with respect to various utility charges (water, sewer, trash collection) at the Comanche Hills complex. Her request for a fee waiver was granted the same day her complaint was filed. Specifically included in the court’s order was a waiver of the “[r]eporter’s fee for attendance at hearing or trial, if reporter provided by the court.”

Defendants filed an answer to the operative second amended complaint, accompanied by a verification signed by Horn. On the same day she dismissed Horn from the lawsuit, Dogan filed a motion for judgment on the pleadings arguing defendants were in default for failing to provide a properly verified answer. Defendants responded with, among other things, an amended answer verified by all remaining defendants. The trial court denied the motion.

The joint trial readiness conference report reflects that a court reporter was requested, but when the case proceeded to jury trial on August 14, 2018, there was no reporter present. Although the Supreme Court’s Jameson decision had been filed over a month earlier—on July 5, 2018—there is nothing in the record to indicate that Dogan objected to the absence of a court reporter or mentioned Jameson to the trial judge.

After jury selection and opening statements, Dogan called three witnesses to testify, including Lisa Pryor and Warren Beecroft. Following a morning break on the second day of trial, these notations appear in the court’s minutes: “Outside the presence of the jury, Plaintiff makes an oral request to change Judges. The request is denied. The Court addresses the Plaintiff regarding her behavior towards the Court. The Court inquires if the Plaintiff wants to proceed with her case. The Plaintiff begins packing up her things and begins heading for the door. Court inquires a second time and the Plaintiff says that she is done calling witnesses. [¶] The Court deems the Plaintiff to have rested.” Defense counsel then made a motion for nonsuit, which the court granted. Judgment was later entered.

In her motion for new trial filed on October 10, 2018, Dogan first complained in writing about the lack of a court reporter at trial, claiming among other things that the trial court “denied my Fee Waiver-covered Official Court Reporter during the proceedings before and at the trial.” She argued that as a result, the proceedings had been “FALSELY, INCOMPLETELY and CONVENIENTLY MANIPULATED in Defendants’ favor, while being minimally recorded by the Court’s Clerk.” In her reply declaration submitted on October 22, for the first time she mentioned the Supreme Court’s recent Jameson decision. Dogan’s motion was summarily denied.

DISCUSSION

It is a fundamental principle of appellate procedure that the judgment or order being appealed is presumed to be correct. ” ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An appellate court will not speculate, and all ambiguities in the record will be resolved in favor of the trial court’s decision. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 8:16; see also Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.) “[T]he burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson, supra, 5 Cal.5th at p. 609.) As we explain, Dogan has not met her burden.

A. The Record Fails to Demonstrate that Dogan Was Improperly Denied an Official Court Reporter

In her primary contention on appeal, Dogan attempts to replicate her successful argument in Dogan I, supra, 31 Cal.App.5th 566. She maintains that based on the Supreme Court decision in Jameson, supra, 5 Cal.5th 594, the superior court had no authority to deny her—a valid fee waiver recipient—the free services of an official court reporter at trial. Dogan asserts that the lack of a verbatim trial transcript unfairly compromises her ability to challenge the basis for the trial court’s grant of a nonsuit, and that this court has no alternative other than to reverse and remand for a new trial.

The problem for Dogan is that she does not show she was denied a court reporter. In this regard there are critical differences between the appellate record in Dogan I and the one in this case, compelling a different result here. In Dogan I, we noted that after the granting of her initial fee waiver request and several months before trial, Dogan “filed a request to waive additional court fees and specifically asked for a waiver of court reporter fees.” (Dogan I, supra, 31 Cal.App.5th at p. 568.) The superior court denied her request, and the record on appeal included a copy of the request form “with the stamped notation, ‘The Court does not provide Court Reporter Services.’ ” (Ibid.) She thus met her burden of demonstrating error on appeal by citing to an appellate record that affirmatively showed her request for an official court reporter had been denied.

Here, the record includes a form order dated February 5, 2016, which granted Dogan’s initial fee waiver request including court reporter fees. No later particularized request was denied. Thus, unlike the situation in Dogan I, Dogan has not presented us with an appellate record that affirmatively demonstrates trial court error. It is true that the record also shows that no court reporter ultimately was present at trial, but it is silent as to the reason. It is possible there was some off-the-record communication between Dogan and one or more court personnel—the judge, the courtroom clerk, someone in the clerk’s office—in which Dogan asked for but was told she could not have a court reporter for trial. But we can only speculate about such a communication. There is nothing in the record to indicate that Dogan’s request for an official court reporter was denied.

Moreover, if there was such a discussion, Dogan had ample opportunity to make a clear record prior to the start of the trial. If she made a request for a court reporter that was somehow denied, she could have asked that the trial court’s minutes reflect that denial. More pointedly, she could have filed a written request to have an official court reporter provided at no charge, citing to the recent Jameson decision. She did neither, leaving us to speculate why there was no reporter present.

Unfortunately for Dogan, the uncertainty does not work to her advantage. She bears the burden of demonstrating that she was improperly denied the services of an official court reporter. She has failed to meet that burden.

B. Dogan’s Remaining Contentions Provide No Basis for Reversal

The absence of a reporter’s transcript makes it impossible to substantively address most of Dogan’s arguments on appeal—specifically those that challenge the propriety of the court’s decision to grant a nonsuit at the close of plaintiff’s case or other actions and events that are based on the evidentiary record. This is because “omission of the reporter’s transcript precludes appellant from raising any evidentiary issues on appeal,” including the sufficiency of the evidence to overcome a nonsuit motion. (Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.) Accordingly, we proceed to discuss only the additional issues raised by Dogan that are not based on the evidence adduced at trial.

1. Dogan’s Motion for Judgment on the Pleadings

Dogan first argues that long before trial began, the superior court erred by denying her motion for judgment on the pleadings based on defendants’ alleged failure to properly verify their answer. But contrary to Dogan’s argument, Code of Civil Procedure section 446 only requires verification by “a party,” not by “all parties” (Butterfield v. Graves (1902) 138 Cal. 155, 158), and in this case Janet Horn was a party defendant at the time the answer was filed. That she was later dismissed from the lawsuit by Dogan does not change the fact that the answer when filed was verified by “a party.” In any event, to cure any possible defect it was well within the trial court’s discretion to accept additional verifications filed by all remaining defendants.

2. Judicial Misconduct

Under multiple headings in her brief, Dogan lists various examples of alleged judicial misconduct and bias. But she fails to develop her arguments, support them with appropriate citation to the record or pertinent authorities, and/or explain why they affected the result. Her failure to do so permits (and, indeed, requires) us to treat the points as forfeited. (See, e.g., McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)

3. Irregularity in the Proceedings as to the Nonsuit Motion

Finally, Dogan complains that the trial court granted the nonsuit even though defense counsel gave no reasons for the motion. Of course, without a reporter’s transcript we have no way of knowing what reasons, if any, were argued orally to the trial court. In any event, a motion for nonsuit tests the sufficiency of the evidence presented by plaintiff to support a verdict in her favor. (See, e.g., Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117.) The reason for the motion is inherent in making it—the claimed lack of sufficient evidence. It requires no additional statement of reasons.

DISPOSITION

The judgment is affirmed. Defendants are entitled to their costs on appeal.

DATO, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.