Opinion
G060156
02-22-2023
NG OVERSEAS TRADING, INC., Plaintiff and Appellant, v. CPC INVESTMENT (REALTY), L.P. et al., Defendants and Respondents.
Law Offices of Lawrence Hoodack and Lawrence Hoodack for Plaintiff and Appellant. Law Offices of Thomas P. Aplin and Thomas P. Aplin for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2018-00975285 Robert J. Moss, Judge. Affirmed.
Law Offices of Lawrence Hoodack and Lawrence Hoodack for Plaintiff and Appellant.
Law Offices of Thomas P. Aplin and Thomas P. Aplin for Defendants and Respondents.
OPINION
MOTOIKE, J.
Plaintiff NG Overseas Trading, Inc. (NG Overseas) appeals from the judgment entered against it and in favor of defendants CPC Investment (Realty), L.P. and RKC, LLC, following a court trial. In its opening brief, NG Overseas primarily argues insufficient evidence supports certain findings by the trial court. It also argues the trial court erred in its interpretation of a relevant statute and by issuing a deficient statement of decision.
We refer to CPC Investment (Realty), L.P. as "CPC", and we refer to CPC and RKC, LLC collectively as "the CPC parties."
It is the appellant's responsibility to provide a record of the proceedings in the trial court necessary for the resolution of the issues on appeal. NG Overseas has not fulfilled that responsibility here. Our record contains no reporter's transcript, no agreed or settled statement, and a very limited appellant's appendix. As we are without a record that allows us to evaluate NG Overseas's challenges to the sufficiency of the evidence, and NG Overseas's additional arguments are without merit, we must affirm.
BACKGROUND
NG Overseas has presented this court with an extremely sparse record.
NG Overseas elected to proceed with an appellant's appendix, but the appendix does not include any pleadings. We understand from the appellate briefs that NG Overseas sued the CPC parties for conversion, quiet enjoyment, and tortious eviction from commercial property. We also understand from the briefing CPC filed a cross-complaint against NG Overseas to recover unpaid rent.
The first 10 items in the appendix consist of 10 unauthenticated documents bearing no file stamp. The appendix does not indicate whether these documents were offered much less admitted into evidence at trial. At oral argument, in an apparent reference to these 10 documents, NG Overseas's counsel stated the trial exhibits were submitted to this court.
Those documents are entitled: (1) "Original Lease for Subject Property"; (2) "Transfer of Lease to Plaintiff"; (3) "April 10, 2017 Proposed Lease"; (4) "May 25, 2017 Proposed Lease"; (5) "Notice of Belief of Abandonment"; (6) "Notice of Right to Reclaim Abandoned Property"; (7) "List of Products"; (8) "Payment to Reclaim Property"; (9) "Correspondence Between Counsel Regarding Property Reclamation"; and (10) "Text Message from Ray Chen to Zahran Barakat."
The appendix only includes four more documents: (1) NG Overseas's request for a statement of decision; (2) the CPC parties' response to the request for a statement of decision, dated December 21, 2020; (3) the trial court's minute order dated February 18, 2021, stating the court had adopted "the statement of decision prepared by" the CPC parties, under rule 3.1590(e) of the California Rules of Court; and (4) the court's judgment in favor of the CPC parties on NG Overseas's first amended complaint, and in favor of CPC on its cross-complaint against NG Overseas in the amount of $15,860 plus costs ($7,404.10) and reasonable attorney fees ($81,600).
Appended to the court's minute order is a second minute order dated February 26, 2021, stating: "It appearing to the Court that through error or inadvertence, the minute order of this Court dated 12/10/2020, does not properly reflect the order of the Court. Said minute order is ordered corrected Nunc Pro Tunc as of 12/10/2020, as indicated below: [¶] The Court orders RKC LLC be dismissed with prejudice on Amended Complaint (First)." Our record does not include the referenced minute order dated December 10, 2020.
The above-referenced response by the CPC parties to NG Overseas's request for a statement of decision, which the court adopted as its statement of decision, initially states: "Plaintiff attempts to identify 23 issues. However, they have largely already been covered by the tentative decision, and many are redundant or are not relevant to the outcome. Defendant will address each issue as follows: ...." The CPC parties' response concluded with their request "the Court adopt its December 10, 2020 Minute Order as part of any final Statement of Decision and include any of the language described herein if the Court believes that such additional findings are required." Our record does not include the court's December 10, 2020 minute order or any "tentative decision" and does not show the trial court adopted any part of its minute order or tentative decision as part of its statement of decision. Our record does not include a reporter's transcript (the CPC parties assert in the respondent's brief there was no court reporter at trial) or an agreed or settled statement of the trial proceedings.
DISCUSSION
"[T]he absence of a court reporter at trial court proceedings and the resulting lack of a verbatim record of such proceedings will frequently be fatal to a litigant's ability to have his or her claims of trial court error resolved on the merits by an appellate court. This is so because it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the 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. [Citations.] 'This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citation.] 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented."' [Citation.] '"A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed."' [Citation.] 'Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].' [Citation.]" (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)
In the opening brief, NG Overseas argues the trial court "erred in failing to properly consider the substantial evidence presented at trial." (Capitalization and boldface omitted.) Specifically, it argues: (1) "there was no credible evidence of abandonment of the subject premises by plaintiff"; (2) "the trial court erred in ignoring unrefuted evidence related to plaintiff's exercise of its right to reclaim property"; and (3) "defendants failed to provide the proper and lawful required notice to plaintiff." (Capitalization and boldface omitted.) NG Overseas discusses how the evidence it purports was presented at trial supports each of its arguments. But we have no record of the evidence actually presented at trial.
The lack of a record of the trial proceedings in this case bars NG Overseas from challenging the sufficiency of the evidence in support of the judgment. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [as "defendants elected not to provide a reporter's transcript of the trial proceedings . . . they have no basis upon which to argue that the evidence adduced at trial was insufficient to support the trial court's finding"]; see also Cal. Rules of Court, rule 8.120(b) [an appellant raising an issue that requires consideration of the oral proceedings in the trial court must provide a record of the oral proceedings in the form of a reporter's transcript, agreed statement, or settled statement].) Consequently, our review of the judgment in this case is limited to determining whether any error appears on the face of the record. (Cal. Rules of Court, rule 8.163.)
NG Overseas attempts to shift responsibility for preparing an adequate appellate record to the CPC parties by pointing out they did not file a respondents' appendix "by which they could have provided the Court with other evidentiary materials in support of their arguments." But, as the appellant, NG Overseas has the burden of providing an adequate record that supports its own arguments of prejudicial trial court error. (Jameson v. Desta, supra, 5 Cal.5th at pp. 608-609.) NG Overseas's failure to carry that burden, as discussed ante, was fatal to its ability to have its sufficiency of the evidence challenges resolved on the merits by this court. (See id. at p. 608.)
In its appellate briefs, NG Overseas argues the lack of a record of the trial court proceedings is not fatal to its appeal. It argues the record shows the trial court erred: (1) in its interpretation of the governing 2017 version of Civil Code section 1951.3, subdivision (c) (former section 1951.3(c)); and (2) by issuing a deficient statement of decision. Both of NG Overseas's arguments lack merit.
At oral argument, NG Overseas's counsel argued there are "really very few facts that are in dispute" relevant to decide what he asserted was the threshold issue in this appeal-whether the notice of belief of abandonment had been properly served under former section 1951.3(c). Former section 1951.3(c) provided: "The lessor's notice of belief of abandonment shall be personally delivered to the lessee or sent by first-class mail, postage prepaid, to the lessee at his last known address and, if there is reason to believe that the notice sent to that address will not be received by the lessee, also to such other address, if any, known to the lessor where the lessee may reasonably be expected to receive the notice."
In response to the question "[w]hether the Notice of Abandonment was served on all of Plaintiff's known addresses, including to Plaintiff's email address," the court's statement of decision states: "Exhibit 9 reflects that the Notice was served on the Subject Premises in two different ways-by mail and by posting. No other known address existed. The statute, Civil Code section 1951.3 (2017 version) permitted service by mail or in person. There is no statutory requirement that the Notice be served by email." (Boldface omitted.)
NG Overseas challenges neither the finding that the notice of belief of abandonment had been properly served by mail and by posting, nor the finding that the CPC parties were unaware of any other physical address for NG Overseas. Instead, and without citations to any supporting legal authority, NG Overseas argues former section 1951.3(c)'s reference to "such other address" for service of notice required the CPC parties to also serve the notice by e-mail and the trial court erred by rejecting that interpretation of the statute in the statement of decision.
We do not need to decide whether NG Overseas's statutory interpretation argument has merit. Even if the trial court's statement of statutory construction in the statement of decision was wrong, and former section 1951.3(c) should be construed as requiring service via a known e-mail address, such service would only be required "if there is reason to believe that the notice sent to [the physical] address will not be received by the lessee." (Former § 1951.3(c), italics added.)
We do not have the necessary record of trial proceedings that would enable us to evaluate whether sufficient evidence supported findings (1) the CPC parties had reason to believe the notice, served by mail and posting, would not be received by NG Overseas, or that (2) they were aware of any e-mail address for NG Overseas by which NG Overseas "may [have] reasonably be[en] expected to receive the notice" (former § 1951.3(c)). Consequently, even if the trial court's statement of statutory interpretation were erroneous, NG Overseas cannot show how any such error was prejudicial without first showing that substantial evidence established those precedent conditions had been satisfied. The lack of a record of trial proceedings, therefore, defeats this argument as well.
At oral argument, the CPC parties' counsel argued the evidence at trial showed NG Overseas actually received the served notice.
NG Overseas also mounts a facial challenge to the statement of decision, arguing "the Court's Statement of Decision, as drafted by Respondents, . . . fails to properly set forth the trial court's legal and full factual findings." NG Overseas's argument is without merit.
"'Securing a statement of decision is the first step, but is not necessarily enough, to avoid the doctrine of implied findings. Litigants must also bring ambiguities and omissions in the statement of decision's factual findings to the trial court's attention-or suffer the consequences. Code of Civil Procedure section 634 states if omissions or ambiguities in the statement of decision's factual findings are timely brought to the trial court's attention, "it shall not be inferred on appeal . . . that the trial court decided in favor of the prevailing party as to those facts or on that issue."' [Citation.]" (Ochoa v. Anaheim City School Dist. (2017) 11 Cal.App.5th 209, 235.)
NG Overseas did not object to the court's statement of decision, or otherwise bring any ambiguities and/or omissions in the statement of decision's factual findings to the trial court's attention. Even on appeal, NG Overseas has failed to identify any finding it contends was wrongfully omitted and has not otherwise explained how the statement of decision was deficient. "[I]n light of the absence of any objection to the [statement of decision], we infer the trial court made implied factual findings favorable to the prevailing party on all issues necessary to support the judgment, including the omitted or ambiguously resolved issues. [Citation.]" (Ochoa v. Anaheim City School Dist., supra, 11 Cal.App.5th at p. 235.)
We find no error.
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
WE CONCUR: MOORE, ACTING P. J., DELANEY, J.