Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC373064, John Kronstadt, Judge.
Ahmed Aboutaleb, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KRIEGLER, J.
Defendant and appellant Ahmed Aboutaleb appeals from a judgment entered in favor of plaintiff and respondent Saleto T. Eury in this breach of contract action. Ahmed contends: 1) the judgment against him is void for lack of valid service of process; and 2) the trial court abused its discretion by denying Ahmed’s requests for continuances and imposing sanctions. We conclude substantial evidence supports the trial court’s finding that Ahmed was properly served with the summons and complaint. Ahmed has failed to provide an adequate record on appeal to permit review of the trial court’s discretionary rulings on his requests for continuances and sanctions. Therefore, we affirm.
Eury has not filed a respondent’s brief. Because several parties in this case have the last name Aboutaleb, the parties will be referred to individually by their first names.
FACTS AND PROCEDURAL BACKGROUND
On June 21, 2007, Eury filed a complaint against Ahmed, Yasser Aboutaleb, and the estate of Ayman Aboutaleb. Eury later amended the complaint to substitute Ahmed in his capacity as executor in place of the estate. The complaint alleged causes of action for breach of a contract, fraud and negligent misrepresentation, unfair business practices in violation of Business and Professions Code section 17200, quiet title, and cancellation of the deed of trust arising out of the sale of a business in Temple City.
In May 2008, Eury filed a proof of service stating that process server Rochelle Yarmak personally served Ahmed with the summons and complaint on May 1, 2008, at 3:30 p.m., at 43723 20th Street, Suite 207, Lancaster, California 93534. On August 1, 2008, the clerk entered Ahmed’s default. The trial court dismissed the complaint as against Ahmed in his capacity as executor and Yasser for failure to obtain entry of default.
On September 2, 2008, Ahmed filed a motion in pro. per. to set aside the default and quash the service of summons on the ground that he had not been personally served as stated in the proof of service. He attached supporting documentation. At a hearing on February 25, 2009, the trial court granted Ahmed’s motion to set aside the default. The court also granted a motion by Eury’s attorney to be relieved as counsel of record.
On April 27, 2009, Ahmed filed a motion to quash service of summons. He submitted a declaration in support of the motion stating that: 1) he had not been personally served; 2) he did not occupy the business address listed on the proof of service on the date that the process server claimed to have personally served him there; and 3) between 3:18 p.m. and 3:35 p.m. on May 1, 2008, he was at McMahon’s Furniture. The hearing date set for the motion was June 17, 2009.
On June 11, 2009, Ahmed filed a request for a continuance to March 2010 based on a knee injury, which required surgery. He stated that the medication for the injury affected his ability to participate in the court proceedings and he would not be able to walk for eight months after the surgery. He attached a medical report of an MRI examination of his left knee, dated April 8, 2009.
No party appeared for the hearing on June 17, 2009. The minute order reflects the trial court’s findings that no opposition to the motion was filed, but “the motion lacks any evidence to support its underlying assertion that the service was fraudulent because the defendant contends that she [sic] did not occupy the business where service was made at the time that the service was purportedly made. There is no admissible or demonstrative evidence submitted to support the motion. [¶] The motion is denied.” In addition, the court issued an order to show cause for sanctions to be imposed against Eury and Ahmed for failing to appear at the hearing.
On July 6, 2009, Ahmed filed a declaration in response to the order to show cause and an identical motion to quash service of summons with references to exhibits. Ahmed did not appear at a hearing on July 10, 2009. The trial court found Ahmed had not provided sufficient medical evidence to support his request for a continuance and issued sanctions of $50 against Ahmed. The court found Ahmed’s motion to quash service was untimely, procedurally defective, and sought relief identical to the motion that had been denied on June 17, 2009. Therefore, the court struck the motion filed July 6, 2009.
On September 2, 2009, Ahmed filed a third copy of his motion to dismiss the service of summons. A final status conference was held on September 11, 2009. Eury appeared through new counsel and Ahmed appeared by telephone. No reporter’s transcript of the proceedings has been provided. The trial court denied Ahmed’s motions for relief from sanctions and to dismiss service as untimely and improper. The court ordered Ahmed to personally appear for a final status conference on December 7, 2009, or provide declarations from his treating doctors one week prior to the hearing date stating why he could not appear.
On November 5, 2008, Ahmed filed a request for a continuance. He submitted a form signed by Dr. Tahir Kahn. Ahmed did not appear for the hearing on December 7, 2009. The trial court found that the doctor’s form did not comply with the court’s order. The court ordered Ahmed to provide a declaration under penalty of perjury from his treating physician stating that based on Ahmed’s condition, he cannot leave his home to travel to court. In addition, Ahmed must submit a declaration with details of any travel outside his residence in the past 90 days. If Ahmed did not appear and the declarations were not filed, or were defective, the court would consider sanctions.
Ahmed filed a declaration stating that on December 7, 2009, he had attempted to attend the hearing, but his knee collapsed at the train station and he was taken by ambulance to a nearby emergency room. He attached supporting documentation.
Ahmed did not appear for trial on December 14, 2009. The trial court found Ahmed had not complied with previous orders about appearing and filing declarations. The court ordered Eury to file a declaration and a default judgment packet “and serve both defendants.” The record on appeal does not explain when the complaint was reinstated as against Yasser.
On January 21, 2010, Ahmed filed a request for continuance on the ground that the trial court lacked jurisdiction because he had never been served and had never made a general appearance. Ahmed did not appear for a conference on the status of default judgment on January 26, 2010. The court entered the defaults of Ahmed and Yasser for failure to appear at the trial dates in December and January. The minute order reflects that the court granted judgment in the amount of $35,000, plus attorney fees of $1,110.
On February 22, 2010, the trial court entered judgment after a court trial in favor of Eury against Ahmed and Yasser. The court awarded damages of $35,000, plus attorney fees of $1,110 under Superior Court of Los Angeles County, Local Rules, rule 3.2(a). In addition, the court cancelled the deed of trust and promissory note on the Lake Los Angeles property in the amount of $24,000. Ahmed filed a timely notice of appeal.
DISCUSSION
Service of Summons
Ahmed contends the trial court should have granted his motion to quash the service of summons under Code of Civil Procedure section 418.10. We conclude that the trial court’s finding that Ahmed was properly served is supported by substantial evidence.
All further statutory references are to the Code of Civil Procedure, unless otherwise stated.
When a defendant challenges jurisdiction by bringing a motion to quash service of process, the plaintiff must prove the facts necessary to show effective service. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793.) Filing a proof of service that complies with the applicable statutory requirements creates a rebuttable presumption that service was proper. (Id. at p. 795.) However, the proof of service “may be impeached and the lack of proper service shown by contradictory evidence.” (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770.)
On appeal, we review whether the trial court’s order denying a motion to quash service under section 418.10 is supported by substantial evidence. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 535.) “[W]henever conflicting evidence is presented in affidavits on a motion to quash, it is presumed the trial court resolved such conflicts against the appellant and in support of its order. [Citations.]” (Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1359.) Therefore, “we resolve all conflicts in the relevant evidence ‘against the appellant and in support of the order.’ [Citation.] If there is no conflict in the relevant evidence, the question is one of law as to which we exercise our independent judgment. [Citation.]” (Sonora Diamond Corp. v. Superior Court, supra, at p. 535.)
We note that when the trial court denies a motion to quash service of summons under section 418.10, the defendant may petition for a writ of mandate within specified time limits. (§ 418.10, subd. (c).) However, if the defendant does not seek a writ of mandate, does not file an answer or otherwise make a general appearance in the trial court, and allows entry of default judgment, it appears the defendant may appeal from the judgment on the jurisdictional grounds. (§ 418.10, subd. (d) [“no motion under this section... shall be deemed a general appearance by the defendant”]; see generally State Farm General Ins. Co. v. JT’s Frames, Inc. (2010) 181 Cal.App.4th 429, 437-441 [examining the development of section 418.10 and holding that an order denying a motion to quash is not subject to post-judgment review once defendant makes a general appearance].)
In this case, the proof of service filed in May 2008 established a rebuttable presumption that service was proper. Ahmed filed a declaration disputing that service took place as stated in the proof of service. However, the trial court did not find Ahmed’s declaration credible. The evidence that Ahmed submitted did not preclude finding that he was served in person on May 1, 2008. In fact, the evidence showed that the office suite listed in the proof of service was his business address and he had access to the suite on the day that he was served. A minor discrepancy as to the time of service was not material to the determination that Ahmed had been personally served with process. The court found the statement of the process server that she hand-delivered the summons and complaint to Ahmed personally on May 1, 2008, at his business address more credible than Ahmed’s denial. We do not reweigh the evidence or the credibility of the witnesses on appeal. Accordingly, substantial evidence supports the trial court’s determination that the summons and complaint were properly served on Ahmed, personally, at the location stated in the proof of service.
Requests for Continuance
Ahmed contends the trial court abused its discretion by denying his requests for continuances and imposing sanctions for his failure to appear. The record on appeal is inadequate to review Ahmed’s contentions.
“‘“‘[T]here is no right to a continuance as a matter of law. [Citation.]’”’ [Citation.]” (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) “[T]he party seeking a continuance must make a proper showing of good cause. [Citations.]” (Foster v. Civil Service Com. (1983)142 Cal.App.3d 444, 448.) “The granting or denying of a continuance is a matter within the court’s discretion, which cannot be disturbed ‘on appeal except upon a clear showing of an abuse of discretion.’ [Citation.]” (Ibid.) “The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 985.)
“It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; see also Davenport v. Unemployment Ins. Appeals Bd. (1994) 24 Cal.App.4th 1695, 1700.) “The [appellant] must affirmatively show error by an adequate record. [Citations.] Error is never presumed. It is incumbent on the [appellant] to make it affirmatively appear that error was committed by the trial court. [Citations.]... ‘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. italics.) [Citation.]” (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) A proper record includes a reporter’s transcript of any hearing leading to the order being challenged on appeal. (See Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532; Berg v. Investors Real Estate Loan Co. (1962) 207 Cal.App.2d 808, 817-818; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 806-807.) In the absence of a proper record on appeal, the judgment is presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
In this case, Ahmed failed to designate a reporter’s transcript of any of the trial court proceedings for purposes of the record on appeal. A court reporter was present at the hearings when the trial court exercised its discretion to deny Ahmed’s requests for continuances and imposed sanctions for his failure to appear in court. We ordered the parties to brief the issue of whether the failure to designate reporter’s transcripts warranted affirmance based on the inadequacy of the record. Ahmed responded that financial hardship prevented him from providing reporter’s transcripts. He did not file a motion to augment the record to include reporter’s transcripts of the relevant hearings, nor did he file a settled statement as permitted under California Rules of Court, rule 8.137.
Without transcripts of the oral proceedings or a settled statement, we cannot review the trial court’s exercise of its discretion and must presume the judgment is correct. Accordingly, we affirm on the basis the record does not establish reversible error. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296 [in the absence of a proper record on appeal, the judgment is presumed correct and must be affirmed].)
Because we affirm the trial court’s rulings on the basis of substantial evidence and lack of an adequate record, we do not address whether any of Ahmed’s requests for continuance constituted a general appearance, waiving any further right to contest personal jurisdiction. (State Farm General Ins. Co. v. JT’s Frames, Inc., supra, 181 Cal.App.4th at pp. 438-441.)
Other Issues
In his brief on appeal, Ahmed refers to matters that occurred after the notice of appeal had been filed, which are irrelevant to the issues raised on appeal. Ahmed also provides citations to law concerning abuse of process, the duties of an attorney under the Business and Professions Code, and various Penal Code violations, which are not relevant to any of the issues before this court on appeal.
DISPOSITION
The judgment is affirmed. No costs are awarded on appeal.
We concur: ARMSTRONG, Acting P. J.MOSK, J.