Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. LC038502, Leon S. Kaplan, Judge.
Stanley D. Bowman for Cross-Complainant and Appellant.
Law Offices of Bennett A. Rheingold and Bennett A. Rheingold for Cross-Defendant and Respondent.
TURNER, P.J.
I. INTRODUCTION
Cross-complainant, Gerald Knapp, appeals from a January 2, 2008 judgment of dismissal in favor of cross-defendant, Lennard J. Henkhaus. The judgment was entered after the trial court sustained cross-defendant’s demurrer to the third amended cross-complaint without leave to amend. We affirm the judgment for failure to provide an adequate record—a contention expressly raised in the respondent’s brief.
II. BACKGROUND
Cross-complainant elected to proceed without a reporter’s transcript. Cross-complainant has not provided this court with a copy of the operative pleading. Cross-complainant filed an appellant’s appendix containing four documents: a February 11, 1998 default judgment in the main action, Stutz v. Cloyd (Super. Ct. L.A. County, 1998, No. LC038502), in favor of plaintiffs, Harold and Eileen Stutz, and against defendants Michael A. Cloyd, an individual and doing business as Chaser’s Bar and Grill, and Mr. Knapp (the cross-complainant here); a June 4, 1999 “agreement re assignment of judgment and judgment lien” executed by Mr. Henkhaus (the cross-defendant here), and a June 16, 1999 assignment of the judgment by Mr. and Mrs. Stutz to Mr. Henkhaus; cross-defendant’s demurrer to the third amended cross-complaint with attached exhibits; and cross-complainant’s opposition to the demurrer with attached exhibits. In his written opposition to the demurrer, cross-complainant asserted no duty existed to give cross-defendant notice of a motion to set aside the default judgment. This was because cross-defendant had no interest in the judgment at the time the motion was filed. Further, the opposition argued cross-complainant was not required to give notice to cross defendant as an adverse party. This was because cross-defendant was not a party who appeared and took part in the earlier proceedings. The opposition further argued: the court had proper subject matter jurisdiction; the proceeding was not abated by the transfer of plaintiffs’ interest to cross-defendant and could be continued in the Stutzs’ name; and cross-defendant was a proper party against whom cross-complainant had legal capacity to sue.
III. DISCUSSION
Cross-complainant raises three arguments on appeal. First, a demurrer cannot be used to challenge a court’s personal jurisdiction over a party. Second, it was error to grant the demurrer because the assignment was defective. And third, the trial court did not grant leave to amend.
Our Supreme Court has set forth the standard of review on appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend: “[T]he standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967; accord, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Supreme Court has held, “On appeal, the burden of proving a reasonable possibility exists that a complaint’s defects can be cured by amendment rests ‘squarely on the plaintiff.’” (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091; accord, Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) A plaintiff forfeits any further leave to amend by failing to request it in the trial court. (Reynolds v. Bement, supra, 36 Cal.4th at p. 1091; Buckley v. Howe (1890) 86 Cal. 596, 605.)
Here, as noted above, cross-complainant elected to proceed on an incomplete record. We do not have a reporter’s transcript of the demurrer hearing or any other proceeding. We do not know what arguments were urged at the hearing on the demurrer. We have no record of any request by cross-complainant for leave to amend the pleading. We do not have a copy of the operative pleading. At oral argument, reference was made to a judicial notice request. Plaintiff has failed to provide that judicial notice request. We cannot determine whether any ground of the demurrer is well-taken. We do not know how the trial court handled the exhibits that were attached to the written demurrer and to the opposition thereto. We have before us only an appellant’s appendix containing: a February 11, 1998 default judgment; an assignment of that judgment to cross-defendant; cross-defendant’s written demurrer to the third amended cross-complaint with attached exhibits; and cross-complainant’s written opposition to the demurrer with attached exhibits.
Under well-settled authority, the judgment must be affirmed on the basis of an inadequate record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; In re Kathy P. (1979) 25 Cal.3d 91, 102; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 628, p. 704.) As the Court of Appeal explained in Rossiter v. Benoit, supra, 88 Cal.App.3d at pages 711- 712: “We were not furnished with a transcript of the hearing of the demurrer.... [¶]... We do not actually know... whether the [trial] court considered or ignored the exhibits [to the demurrer and the opposition thereto] and [the] arguments, if any, in connection with them. Without a transcript of the hearing on the demurrer, we have no idea what grounds were actually advanced or what arguments were made in the trial court in support of or in opposition to the demurrer.... [¶] The plaintiff must affirmatively show error by an adequate record. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72; see 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 373, p. 4345.) Error is never presumed. It is incumbent on the plaintiff to make it affirmatively appear that error was committed by the trial court. (Richard v. Richard (1954) 123 Cal.App.2d 900, 902; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 806.) Points not urged in the trial court may not be urged for the first time on appeal. (Damiani v. Albert (1957) 48 Cal.2d 15, 18; Buckley v. Savage (1960) 184 Cal.App.2d 18, 32.) This is a general rule of appellate review. (See 5 Cal.Jur.3d, Appellate Review, § 480, p. 117.) ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent....’ (Orig. emphasis.) (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 235, p. 4225.) [¶] We are not permitted to speculate whether the lower court did or did not consider the exhibits attached to [the] demurrer, the allegations therein and the arguments based on them. It is plaintiff’s burden to affirmatively show error. He has not met this burden. The judgment is presumed correct, which means the trial court acted properly in making the judgment.”
IV. DISPOSITION
The judgment is affirmed. Cross-defendant, Lennard J. Henkhaus, is to recover his costs on appeal from cross-complainant, Gerald Knapp.
I concur: KRIEGLER, J.
DISSENTING OPINION
MOSK, J.
I dissent. Because the majority decides this appeal on a procedural ground, and thus does not set forth the facts, I will provide a brief factual background.
Harold J. Stutz and Eileen M. Stutz obtained a default judgment against defendant, cross-complainant, and appellant Gerald Knapp. The Stutzes assigned cross-defendant and respondent Lennard J. Henkhaus a $250,000 interest in their judgment and their judgment lien against Knapp’s home. Pursuant to a sheriff’s sale, Knapp’s home subsequently was sold. Thereafter, Knapp moved to set aside the Stutzes’ default judgment and the default judgment was overturned. Then, Knapp brought the cross-complaint that, through amendments, culminated in the “third amended cross-complaint for declaratory relief re: restitution after reversal,” the pleading at issue in this appeal. The third amended cross-complaint concerns the loss Knapp sustained from the sale of his house.
Henkhaus demurred to the third amended cross-complaint on several grounds, all of which are based on his contention that the overturned default judgment is still in effect as to him because Knapp failed to give him notice of Knapp’s motion to set aside the default judgment. Within his demurrer, Henkhaus requested judicial notice of certain documents that, as relevant, apparently were intended as factual support for his claim that Knapp did not give him notice of Knapp’s motion to set aside the default judgment. The trial court sustained Henkhaus’s demurrer to the third amended cross-complaint without leave to amend. The minute order for the hearing on Henkhaus’s demurrer does not indicate that the trial court ruled on Henkhaus’s request for judicial notice.
This court has the third amended cross-complaint. We can, as we often do, augment the record with that document. Thus, this appeal should not be decided on the ground of an inadequate record based on the absence of the third amended cross-complaint.
The record on appeal is not deficient because it does not contain the reporter’s transcript of the demurrer hearing. A demurrer challenges the legal sufficiency of factual allegations in a complaint. (Abbott Laboratories v. Franchise Tax Board (July 21, 2009, B204210) ___ Cal.Rptr.3d ___ [2009 WL 2152564, at p. 1, fn. 2]; Yue v. City of Auburn (1992) 3 Cal.App.4th 751, 756-757.) We review the legal sufficiency of a complaint de novo. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) In that review, “we are not required to accept the trial court’s legal reasons or conclusions of law; we review its ruling, not its reasoning.” (Qualcomm, Inc. v. Certain Underwriters at Lloyd’s, London (2008) 161 Cal.App.4th 184, 203-204; Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517 [in an appeal from an order sustaining a demurrer, the appellate court “is not bound by the trial court’s construction of the complaint, but must make its own independent interpretation”].) Because we are not bound by the trial court’s ruling on the legal sufficiency of the third amended cross-complaint, the record on appeal is not deficient for lack of the reporter’s transcript of the hearing on Henkhaus’s demurrer.
The reporter’s transcript of the demurrer hearing might have been necessary for our review if the legal sufficiency of the third amended cross-complaint depended on the trial court’s ruling on Henkhaus’s request for judicial notice. It does not. The factual lynchpin for Henkhaus’s demurrer is his claim that Knapp did not give him notice of Knapp’s motion to set aside the Stutzes’ default judgment. Even if the documents of which Henkhaus requested judicial notice establish that Knapp did not give Henkhaus notice of Knapp’s motion to set aside the Stutzes’ default judgment, such lack of notice is immaterial because, as I explain below, Henkhaus was not entitled to any such notice in the first instance.
It is an appellant’s burden to provide an adequate record to assess a trial court’s claimed error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) “It is the appellant’s responsibility to include in the appellate record the portions of the reporter’s transcript relevant to the appellant’s issues on appeal.” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1002.) To always require a transcript of a demurrer hearing on appellate review, even when such a transcript is unnecessary, conflicts with an appellant’s legal burdens and responsibilities.
In his demurrer to the third amended cross-complaint, Henkhaus asserted that his interest in the Stutzes’ overturned default judgment is still in effect because, as an assignee holding an interest in that judgment, Knapp was required to give him notice of Knapp’s motion to set aside the default judgment which notice Knapp failed to give. Based on that assertion, Henkhaus demurred on the following grounds: “(1) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (2) Cross-complainant Gerald Knapp does not have the legal capacity to sue Cross-defendant Lennard J. Henkhaus; (3) There is a defect or misjoinder of parties; and (4) The pleading does not state facts sufficient to constitute a cause of action against Mr. Henkhaus.” Henkhaus makes the same assertions on appeal. I would hold that, for purposes of notice for a motion for relief from a default judgment under Code of Civil Procedure section 473, subdivision (b), an assignee of an interest in a default judgment is not an adverse party to whom notice must be given.
“‘It is the general rule that in an action for declaratory relief the complaint is sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties... and requests that the rights and duties be adjudged.... If these requirements are met, the court must declare the rights of the parties whether or not the facts alleged establish that the plaintiff is entitled to a favorable declaration.’ [Citations.]” (Condor Ins. Co. v. Williamsburg Nat. Ins. Co. (1996) 49 Cal.App.4th 554, 565.)
A court may, upon any terms as may be just, relieve a party from a judgment taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) “[A]n application for relief under section 473, subdivision (b), is a motion and... an application for relief under the statute is deemed to be made upon filing in court of a notice of motion and service of the notice of motion on the adverse party. (Garcia v. Gallo (1959) 176 Cal.App.2d 658, 669 [1 Cal.Rptr. 539].) Therefore, absent service on the adverse party, there is no ‘application’ for relief.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 341.) “‘A court... is without jurisdiction to set aside a judgment, and an order setting aside a decree or judgment previously entered is void, if no notice is given to adverse parties whose rights would be affected by the order. [Citations.]’ (Linstead v. Superior Court (1936) 17 Cal.App.2d 9, 13-14 [61 P.2d 355].)” (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 289.)
In his demurrer, Henkhaus did not challenge the sufficiency of the factual allegations in Knapp’s third amended cross-complaint to state a cause of action for declaratory relief, nor does he make such a challenge on appeal. Instead, based on the documents in his request for judicial notice, Henkhaus contends that Knapp’s declaratory relief action is defective because Knapp’s failure to give him notice of Knapp’s motion to set aside the Stutzes’ default judgment rendered the relief from that judgment void as to him.
For purposes of Knapp’s motion to set aside the Stutzes’ default judgment, Henkhaus was not an adverse party whose rights would be affected by an order granting Knapp’s motion. The Stutzes brought an action against Knapp and another party for breach of contract and fraud. The adverse parties to that action were the Stutzes on one hand and Knapp and the other party on the other hand. Henkhaus did not become a party to the contract and fraud litigation brought by the Stutzes by virtue of the Stutzes’ assignment to Henkhaus of an interest in the ensuing default judgment. Accordingly, Henkhaus was not an “adverse party” to whom Knapp was required to give notice.
In support of his contention that he was an adverse party to whom Knapp was required to give notice, Henkhaus relies on Spruce v. Wellman (1950) 98 Cal.App.2d 158 for the proposition that “an adverse party is any party who will be adversely affected by the granting of a motion,” and Vincent v. Collins (1898) 122 Cal. 387 for the proposition that an assignee of a judgment is an adverse party. The cases on which Henkhaus relies are distinguishable.
In Spruce v. Wellman, the “adverse party” who did not receive notice was one of three named defendants in the action, and was the only named defendant who did not receive notice of a new trial motion. (Spruce v. Wellman, supra, 98 Cal.App.2d at pp. 159-160.) In Vincent v. Collins, the “adverse party” was one of four named defendants and happened to be the assignee of the estate of an insolvent debtor. After judgment in favor of the plaintiff, another named defendant appealed, but served only the plaintiff and none of his three co-defendants. (Vincent v. Collins, supra, 122 Cal. at pp. 387-389.) Here, unlike the “adverse parties” in Spruce v. Wellman and Vincent v. Collins, Henkhaus was not a named party to the Stutzes’ action and, thus, he was not an “adverse party” who was entitled to notice of Knapp’s motion to set aside the Stutzes’ default judgment.
In this case, to affirm a clearly incorrect ruling, based on the perceived deficient record, constitutes a miscarriage of justice.