Filed 2/18/20 Mortato v. Pardee CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

LUCIA MORTATO,

Plaintiff and Appellant,

v.

FREDERICK S. PARDEE et al.,

Defendants and Respondents.

B287254

(Los Angeles County

Super. Ct. No. BC598327)

APPEAL from a judgment of the Superior Court of Los Angeles County, Malcolm H. Mackey, Judge. Affirmed.

Lucia Mortato, in pro. per., for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Raul L. Martinez and Helen H. Lee for Defendants and Respondents.

__________________________

Plaintiff Lucia Mortato appeals from a judgment of dismissal entered after the trial court sustained without leave to amend two demurrers to Mortato’s second amended complaint filed by defendant PBM Quality Apartment Homes (PBM) and named individual defendants. Mortato worked for PBM as the resident manager of one of its residential properties. Mortato alleged 15 causes of action arising from PBM’s termination of her employment and her eviction from the building. On the day of the hearing on defendants’ demurrers, Mortato filed an ex parte application for a continuance of the hearing and extension of the time for her to file an opposition. The trial court denied Mortato’s request and sustained the demurrers, finding Mortato’s causes of action were not adequately pleaded.

On appeal, Mortato contends the trial court abused its discretion in denying her request for a continuance, she was denied due process at the hearing, and the trial court erred in denying her subsequent motion for relief from judgment under Code of Civil Procedure section 473, subdivision (b). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Mortato’s Complaint
B.
Mortato filed this action as a self-represented litigant on October 19, 2015. After the trial court sustained with leave to amend defendants’ demurrer to Mortato’s first amended complaint, Mortato filed the operative second amended complaint on March 13, 2017. The second amended complaint named PBM, Frederick S. Pardee, F.S. Pardee Trustee, Vidram S. Budhraja, Vikram S. Budhraja Trustee, Upma Budhraja, Upma Budhraja Trustee, Budhraja Trust, Rajan Aneja, Irvin Matsukiyo, Shahnaz Baligh, Michael Mansell, Mario Garcia, and Lilia Favela as defendants. The second amended complaint alleged all defendants were owners, officers, directors, or employees of PBM. Mortato asserted causes of action against all defendants for conversion, bad faith eviction, fraud and intentional concealment, unfair competition, harassment in violation of Civil Code section 1940.2, breach of the warranty of habitability, breach of written contract, retaliatory eviction, violation of tenant’s right to privacy under Civil Code section 1954, forcible entry in violation of Code of Civil Procedure section 1159, quid pro quo sexual harassment, wrongful termination, conspiracy, defamation, and intentional infliction of emotional distress. Mortato alleged she worked for PBM as a part-time resident manager in a residential building PBM owned. In exchange for her services, Mortato received reduced rent. PBM terminated Mortato’s employment in May or June 2012, then evicted her in January 2013.

C. Defendants’ Demurrers and Motions To Strike
D.
On April 11, 2017 PBM, Pardee, F.S. Pardee Trustee, Vidram S. Budhraja, Vikram S. Budhraja Trustee, Upma Budhraja, Upma Budhraja Trustee, Budhraja Trust, and Aneja demurred to the second amended complaint. On April 24, 2017 Matsukiyo, Baligh, and Mansell also demurred to the second amended complaint. The defendants concurrently filed motions to strike portions of Mortato’s prayer for relief. Defendants argued several of Mortato’s causes of action were barred by the statute of limitations, or by the preclusive effect of PBM’s previous unlawful detainer action against Mortato. Defendants also contended as to each cause of action the second amended complaint failed to state facts sufficient to constitute a cause of action. Matsukiyo and Mansell additionally argued all causes of action against them were barred by the statute of limitations because Mortato had known their identities at the inception of her suit but failed to name them as defendants in her initial complaint. Matsukiyo and Mansell requested judicial notice of Mortato’s July 2012 requests for civil harassment restraining orders against Matsukiyo and Mansell to demonstrate Mortato’s awareness of their identities.

The trial court set a hearing on the demurrers and motions to strike for October 10, 2017. On October 3 defendants filed a notice of nonopposition, noting Mortato had not filed her oppositions by the September 27 filing deadline (nine court days before the hearing under § 1005, subd. (b)). On October 10 Mortato filed an ex parte application to continue the hearing and extend the time for her to file her oppositions. Mortato did not file a declaration, but she generally asserted she was in the process of seeking representation, she was “attending to some physical injuries [she] incurred [a] few months ago in an accident,” and she had just returned from an overseas trip to care for a sick family member. (Capitalization omitted.) Defendants filed an opposition, arguing Mortato had over five months to prepare her opposition, received three continuances prior to filing her second amended complaint, and further delay was not warranted given that nearly two years had passed since Mortato initiated the action.

At the October 10 hearing, the trial court denied Mortato’s ex parte application, sustained the demurrers without leave to amend, and granted the motions to strike. The court adopted its tentative ruling, in which it found Mortato’s causes of action were not adequately pleaded and defendants’ other arguments had merit. The trial court entered a judgment of dismissal on November 2, 2017. On December 29, 2017 Mortato timely appealed from the judgment.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Denying Mortato’s Request for a Continuance and Time Extension
B.
Mortato contends the trial court abused its discretion in denying her ex parte application to continue the hearing on defendants’ demurrers and to extend the time for the filing of her opposition to the same. “‘“Generally, power to determine when a continuance should be granted is within the discretion of the court, and there is no right to a continuance as a matter of law.”’” (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 576; accord, Jurado v. Toys “R” Us, Inc. (1993) 12 Cal.App.4th 1615, 1617 [“The decision whether to grant a motion for a continuance is within the trial court’s discretion and will not be disturbed on appeal absent a clear showing of abused discretion.”].) The party seeking to continue the hearing must show good cause. (Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, 444.) Mortato has not shown the court abused its discretion.

Mortato filed her ex parte application on October 10, 2017, the same day as the hearing and nine days after her oppositions were due. (See § 1005, subd. (b) [“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing.”].) Mortato asserted she had been unable to prepare her oppositions because she was searching for an attorney, she had been recently injured, and she was required to travel internationally to care for a sick relative. But Mortato’s proffered reasons were devoid of specifics, failing to state when, how, or for how long she was injured, or for how long she was out of the country (or when she returned). Nor did she provide details on her asserted search for an attorney during the five months since the motions were filed. Moreover, none of the circumstances explains why Mortato could not have filed a timely request for a continuance and extension of time instead of waiting until the day of the hearing. Under these circumstances, the trial court’s denial of Mortato’s ex parte application was not an abuse of discretion.

Even if the trial court’s denial of the motion was an abuse of discretion, any error was harmless. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801 [harmless error standard under People v. Watson (1956) 46 Cal.2d 818 applies to civil cases, “precluding reversal unless the error resulted in a miscarriage of justice”]; see § 475 [“No judgment . . . shall be reversed or affected by reason of any error . . . unless it shall appear from the record that such error . . . was prejudicial . . . .”].) Mortato has had a full opportunity on appeal to present her arguments why defendants’ demurrers should have been overruled and their motions to strike denied.

Defendants contend Mortato forfeited her right on appeal to contest the court’s sustaining of the demurrers by failing to oppose them below. She has not. Defendants’ reliance on Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589 is misplaced. In Bell, the Court of Appeal concluded the appellant waived its right to challenge the trial court’s ruling precluding class members from opting out of the class by failing to oppose a motion to preclude opt outs. (Id. at p. 1602.) But the role of the trial court in evaluating a demurrer is different from its role in ruling on other types of motions. Even if a party fails to appear at the hearing on the demurrer, the trial court must decide the demurrer on the merits. (Cal. Rules of Court, rule 3.1320(f) [“When a demurrer is regularly called for hearing and one of the parties does not appear, the demurrer must be disposed of on the merits at the request of the party appearing unless for good cause the hearing is continued.”].) Defendants have provided no authority for the proposition a plaintiff’s failure to oppose a demurrer in the trial court constitutes a forfeiture of the right to contest on appeal the sustaining of the demurrer.

Moreover, “[i]n reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. [Citation.] Where the demurrer was sustained without leave to amend, we consider whether the plaintiff could cure the defect by an amendment.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162; accord, Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) “‘The plaintiff has the burden of proving that [an] amendment would cure the legal defect, and may [even] meet this burden [for the first time] on appeal.’” (Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill Extension Construction Authority (2018) 19 Cal.App.5th 1127, 1131-1132, 1136 [plaintiff granted leave to amend on appeal despite failure to file opposition to demurrer in trial court]; accord, Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 971.)

C. Mortato Has Failed To Provide an Adequate Record To Support Her Contention the Trial Court Deprived Her of Due Process
D.
Mortato contends the trial court violated her right to due process by denying her an opportunity to be heard at the October 10, 2017 hearing, rendering the judgment void. According to Mortato, once she began to present her argument, she was “immediately interrupted” by the court and defense counsel. The trial court then told her the case was “too difficult” and left the bench. (Boldface and underscoring omitted.) But Mortato has failed to meet her burden to provide a record on appeal to support her description of what transpired at the hearing. The only record of the hearing is the court’s minute order, which reflects Mortato made an appearance, and the court denied Mortato’s ex parte application and adopted the court’s tentative ruling.

On appeal, “‘“(1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.”’” (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 996; accord, Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.) “‘“Failure to provide an adequate record on an issue requires that the issue be resolved against appellant.”’” (Mack v. All Counties Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 940; accord, Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348 [“By failing to provide an adequate record, appellant cannot meet his burden to show error and we must resolve any challenge to the order against him.”].)

Although there was no court reporter at the hearing, Mortato could have filed on appeal an agreed or settled statement providing a summary of the trial court proceedings at the hearing. (Cal. Rules of Court, rules 8.134 [agreed statement] & 8.137 [settled statement].) Absent a record of whether Mortato was provided an adequate opportunity to present her argument at the October 10 hearing, Mortato has not carried her burden to show she was deprived of due process.

E. Mortato Has Failed To Meet Her Burden on Appeal To Show the Trial Court Erred in Sustaining the Demurrers
F.
Mortato asserts her 15 causes of action “are mostly sufficiently pleaded” and only some of the causes of action are barred by the statute of limitations. But she has failed to carry her burden to demonstrate error by the trial court because she does not present any legal argument explaining how the allegations in her second amended complaint satisfy the elements of any of her 15 causes of action. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 [“‘[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.’”]; Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457 [plaintiffs forfeited claim of error by failing to “present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error”]; City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [“[W]e may disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.”]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived.”]; Cal. Rules of Court, rules 8.204(a)(1)(B) [“Each brief must . . . [¶] . . . [¶] . . . support each point by argument and, if possible, by citation of authority . . . .”].)

As defendants assert, because Mortato’s opening brief failed to include any argument on the merits, they were not required to “respond[] to hypothetical arguments that [Mortato] might have raised” in her opening brief. Under the circumstances, Mortato has forfeited her contentions by failing to make any legal argument or cite any authorities to show her 15 causes of action are adequately pleaded and not barred by the statute of limitations.

Although Mortato requests leave to amend on appeal, she has not articulated any proposed amendment, and therefore she has not met her burden to show an amendment would cure any legal defect. (Sierra Palms Homeowners Assn. v. Metro Gold Line Foothill Extension Construction Authority, supra, 19 Cal.App.5th at p. 1132.)

G. The Trial Court’s Ruling on Mortato’s Motion for Relief from Judgment Is Not Properly Before Us
H.
Mortato contends the trial court erred in denying her motion to set aside the judgment of dismissal under section 473, subdivision (b). But Mortato filed her motion on May 1, 2018, four months after filing her notice of appeal (on December 29, 2017). Therefore, Mortato’s challenge to the court’s denial of her motion to set aside the judgment is not properly before us on appeal.

“Ordinarily, an appellate court is confined in its review to the proceedings that took place in the court below and are brought up for review in the record on appeal. [Citation.] Thus, ‘[m]atters occurring after entry of judgment are ordinarily not reviewable: The appeal reviews the correctness of the judgment or order as of the time of its rendition, leaving later developments to be handled in subsequent litigation.’” (In re Francisco W. (2006) 139 Cal.App.4th 695, 706; accord, In re Zeth S. (2003) 31 Cal.4th 396, 405 [“‘[A]n appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’”].) There are exceptions to this rule (see Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 [considering party’s postappeal insolvency that was not in dispute]), but Mortato has not shown any exceptions apply.

Because Mortato appeals only from the November 2, 2017 judgment of dismissal, we do not consider her challenge to the trial court’s postjudgment order denying her motion for relief from judgment filed four months later. (City of Long Beach v. Crocker National Bank (1986) 179 Cal.App.3d 1114, 1118, fn. 7 [declining to consider postjudgment order denying motion to vacate judgment where appeal was unambiguously taken only from judgment].)

DISPOSITION

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

FEUER, J.

We concur:

PERLUSS, P. J.

ZELON, J.