Opinion
G054602
12-21-2018
JEFFREY D. GROSS, Plaintiff and Respondent, v. PAUL RANDALL, Defendant and Appellant.
Graham & Martin, Anthony G. Graham for Defendant and Appellant. Indeglia & Carney, Marc. A. Indeglia for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00781485) OPINION Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. Affirmed. Motion for sanctions denied. Requests for judicial notice denied. Graham & Martin, Anthony G. Graham for Defendant and Appellant. Indeglia & Carney, Marc. A. Indeglia for Plaintiff and Respondent.
Paul Randall appeals the trial court's judgment granting Jeffrey Gross declaratory relief. Randall asserts the court erred because the undisputed facts supported Randall's claims. He also contends the court abused its discretion by refusing to grant a third continuance of the trial date. We find no error and affirm the judgment.
I
FACTS
In June 2015, Gross filed the operative complaint against Randall for declaratory relief seeking a judicial determination of his rights. The complaint stated: "On or about April 8, 2015, [Randall's] attorney . . . notified [Gross's] counsel . . . that [Randall] was demanding $90,000 from [Gross]. The basis for [Randall's] demand was that, allegedly, in or around 2008, Tri-City Regional Medical Center ('Tri-City') had advanced $50,000 towards payment of medical malpractice insurance on behalf of [Gross] and $10,000 towards payments for travel expenses of certain patients of [Gross]. Through his attorney, [Randall] alleged that Tri-City had 'charged' this amount to [Randall], and that, as a result, [Gross] allegedly now owned this amount to [Randall], along with $30,000 in 'interest.'" Gross sought a judicial determination that the parties had no contractual relationship and that Gross owed no duty or damages to Randall.
Both parties reference Gross's first amended complaint for declaratory relief filed June 5, 2015, but the parties did not designate the document for inclusion in the clerk's transcript. On our own motion, we augmented the record to include the omitted document. (Cal. Rules of Court, rule 8.155(a)(A).)
Randall then filed a cross-complaint against Gross. Randall alleged he served as Gross's agent and obtained for him a position at Tri-City as one of its physicians. He further asserted Tri-City charged him for Gross's malpractice insurance and certain travel expenses for Gross's patients. Randall sought over $50,000 in damages from Gross, interest, and attorney fees, for money had and received and violation of Business and Professions Code section 17200.
Randall sought and obtained two trial continuances. In November 2016, Randall moved ex parte to stay the action, which was denied. Thereafter, counsel for Randall withdrew.
On the first day of trial in December 2016, Randall was specially represented by counsel. The record showed Randall "wish[ed] to obtain new counsel of record." There is no record of a noticed motion or ex parte application reflecting Randall seeking an earlier continuance of the trial. The matter was not reported by a court reporter.
In support of Randall's opposition to Gross's sanctions motion, Douglas Schenck filed a declaration stating he served as Randall's attorney on the day of trial and he "specially appeared ex parte on behalf of Appellant Paul Randall and requested a short continuance of the trial to allow Appellant Randall to get counsel." The record, however, is devoid of such a continuance request on the day of trial.
The case proceeded to trial on the same day, but neither Randall nor his counsel appeared, even though the court declared a recess to allow Randall to appear. Gross presented his evidence, and the court granted judgment in favor of Gross on both the complaint and the cross-complaint. The court determined: "1. [Gross] and [Randall] do not have a contractual relationship. [¶] 2. [Gross] does not otherwise owe any duty to [Randall], whether such duty sounds in contract, quasi-contract, tort, or otherwise at law or in equity. [¶] 3. [Gross] has not taken any action or inaction that would give rise to any cause of action or claim for damages in favor of [Randall], including, without limitation, breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, fraud, negligent misrepresentation, intentional interference with prospective business advantage, or unfair competition. [¶] 4. [Gross] has not taken any action or inaction that is the legal or proximate cause of any damages allegedly sustained by [Randall]. [¶] 5. [Gross] has not taken any action or inaction that would give rise to any damages in favor of [Randall], including punitive damages. [¶] 6. [Randall] shall take nothing by way of [Randall]'s Cross-Complaint against [Gross]."
II
DISCUSSION
A. The Trial Court Did Not Err in Granting Gross Declaratory Relief
Randall contends the facts in this matter were undisputed and the trial court committed legal error by granting Gross declaratory relief. We disagree.
"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) If there is no statement of decision under Code of Civil Procedure section 632, the court must "presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) A court must further presume that the evidence received at trial sustained the court's findings. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 649.)
As an initial matter, we note the facts in this matter were indeed disputed. Gross's factual allegations differed greatly from Randall's. Randall cites facts from his own cross-complaint as if they were conclusively established at trial. In fact, Randall is ignorant as to what occurred at trial. Neither Randall nor his counsel attended and there was no reporter's transcript.
The only evidence submitted to the trial court was that proffered by Gross. After considering the evidence, the court granted judgment in favor of Gross as to the complaint and Randall's cross-complaint. A statement of decision was not requested.
Randall fails to identify a legal issue on appeal, but instead lists unsubstantiated facts without citation and asserts the "undisputed" facts showed he was an intended beneficiary of a transaction between Tri-City and Gross. The judgment, however, makes clear there was no agreement that Randall would pay and/or reimburse Tri-City, Gross, or any other person for any amount relating to Gross's hospital privileges at Tri-City. Because there was no underlying agreement, Randall could not have been an intended or third party beneficiary to a nonexistent agreement. The court further determined Gross owed no duty or damages to Randall under any legal theory. Under these circumstances, we must affirm the judgment. B. The Trial Court Did Not Err in Denying Randall's Request for a Continuance
Randall asserts on the day of trial, his specially appearing counsel requested a short continuance to allow him to retain trial counsel. Gross contends Randall never sought a continuance of the trial in December 2016. We find no record of such a request and therefore find no error.
"The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.] The trial court's exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record." (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.) California Rules of Court, rule 3.1332(b), requires that "[a] party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations."
All further rule references are to the California Rules of Court.
Although Randall claims the trial court unreasonably refused a short continuance to allow him to retain counsel, the record does not show he requested a continuance at all. We note Randall applied ex parte to stay the action in November 2016, which the court denied, but the denial of the application for stay is not at issue on appeal. Randall relies on the evidence presented in the ex parte application to stay the action to support his purported request for a trial continuance. There is no record, however, that the issues raised in the November 2016 ex parte application were raised at trial two weeks later. On December 5, 2016, the date of trial, the trial court's minute order reflects "[c]ounsel for [Randall] represented that he wishes to obtain new counsel of record." The minute order is silent as to a request for a trial continuance.
Even assuming a request to obtain new counsel is an implicit continuance request, nothing in the record shows Randall established good cause requiring a continuance. Randall contends his counsel withdrew because of a serious medical condition, but the underlying substitution of attorney is not in our record. The declaration of the attorney who purportedly requested the continuance says nothing about a medical condition. We also have no reporter's transcript from the proceeding and no statement of decision. So as far as our record reflects, the grounds for the continuance were never put before the court. It is hard to find an abuse of discretion in denying a third continuance without an indication of why it was required.
Furthermore, even assuming an ad hoc oral request for a trial continuance was made on December 5, 2016, Randall failed to make a noticed motion or ex parte application, as required by rule 3.1332(c). The trial court did not abuse its discretion in denying a request to continue the trial, if such a request was even made, because Randall failed to follow the requirements of rule 3.1332(c) and there was no affirmative showing of good cause for a continuance. C. Gross Not Entitled to Sanctions for a Frivolous Appeal
Gross filed a motion for sanctions against Randall on the grounds the appeal is frivolous. Section 907 of the Code of Civil Procedure permits recovery of costs when an appeal is "frivolous or taken solely for delay," and rule 8.276(a)(1) permits the imposition of sanctions, including costs, for "[t]aking a frivolous appeal or appealing solely to cause delay." An appeal is frivolous "when it is prosecuted for an improper motive - to harass the respondent or delay the effect of an adverse judgment-or when it indisputably has no merit - when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
Although the issue is close, we cannot determine Randall's appeal "indisputably has no merit." Here, Gross contends Randall's appeal was frivolous because Randall did not move for a trial continuance or request a statement of decision under Code of Civil Procedure section 632. While we determine Randall's claims lack merit, we cannot say they were objectively devoid of any merit as to warrant sanctions. We deny Gross's motion for sanctions.
III
DISPOSITION
The judgment is affirmed. We deny Gross's request for sanctions. Both requests for judicial notice are denied.
On April 13, 2018, Gross requested we take judicial notice of Randall's criminal record. On November 8, 2018, Randall requested we take judicial notice of newspaper articles concerning allegations against Gross. Because we find the requested information to be judicially noticed irrelevant to the issues on appeal, we deny both requests. --------
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.