Opinion
H047449
04-29-2022
HIEU M. NGUYEN, Plaintiff and Appellant, v. LITTLE SAIGON PLAZA, LLC, Defendant and Respondent.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 115-1-CV-275238)
We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 852-855.)
Wilson, J.
Plaintiff and appellant Hieu M. Nguyen appeals an order of dismissal with prejudice following his failure to appear at a mandatory settlement conference and trial in this action alleging fraud and related claims stemming from an apparent business dispute. Nguyen has not provided an adequate record or opening brief to enable meaningful appellate review. Accordingly, we affirm.
It is well settled that a judgment is presumed correct and" 'error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) For that reason, an appellant bears the burden of providing an adequate record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 (Maria P.).) Where the appellant fails to do so, a reviewing court is required to resolve the matter against the appellant. (Id. at pp. 1295-1296.) We are not permitted to speculate as to the contents of missing portions of the record or issues appellant may have raised below. (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1051-1052.) Instead, our review is limited to the record before this court. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.)
Similar rules apply to an appellant's opening brief, which must provide a summary of significant facts limited to matters in the record, include record citations in support of factual assertions, identify the relief sought, and explain why the order appealed from is appealable. (Cal. Rules Court, rule 8.204(a)(1)(C), (a)(2)(A), (a)(2)(C).) A reviewing court may not consider any statements of fact not supported by the record or any claims of error based on unsupported statements. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947.) Briefs must also provide argument and legal authority to support their contentions; "[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Nguyen has failed to comply with these requirements.
The record before this court consists only of documents related to an ex parte application and motion to continue trial, which the trial court granted, and the court's minute orders issuing an order to show cause and then dismissing the action for Nguyen's subsequent failure to appear at the mandatory settlement conference and trial. Although the register of actions lists various other filings and proceedings in the trial court, the documents themselves are not provided, including the operative pleadings.
Most significantly, there is no transcript or other documentation of the hearings or other oral proceedings in the trial court. An appellant is required to provide a reporter's transcript, agreed statement, or settled statement for any issue that "requires consideration of the oral proceedings in the superior court." (Cal. Rules of Court, rule 8.120(b).)
From the limited record before this court, we are able to discern only the following basic facts. In February 2019, Nguyen filed an ex parte application to file a motion to continue the trial due to his unavailability, on the grounds that he was being detained in Vietnam and was therefore unable to appear. In a declaration dated February 15, 2019, Nguyen stated that he "was told by the government officials of Vietnam that they expect the Suspension Decision to be released on or about April 14, 2019," so that he believed he would not be allowed to leave Vietnam before that date. The trial court granted the application over defendant's opposition, and set the motion to continue the trial for March 26, 2019.
The court heard the motion and vacated the April 15, 2019 trial date. At an April 30, 2019 trial setting conference, the court set the trial for September 23, 2019, with a settlement conference set for September 18, 2019.
At the scheduled settlement conference on September 18, 2019, with counsel for both parties present, the court issued an order to show cause to Nguyen for his failure to appear and ordered him to be personally present for trial on September 23.
On September 23, 2019, the court issued a minute order stating only: "Plaintiff is not present and [plaintiff's counsel] has been unable to reach the Plaintiff after multiple attempts. This matter is dismissed with prejudice. Trial date is vacated."
Nguyen filed his notice of appeal on October 21, 2019. The trial court subsequently entered an Order of Dismissal on February 7, 2020, stating that it was based on "Order to show cause re: failure to appear by Plaintiff at Mandatory Settlement Conference and Trial pursuant to CCP 594."
This court then issued an order, on our own motion, deeming Nguyen's appeal filed as of the date of the order of dismissal. (Cal. Rules of Court, rule 8.104(d)(2) ["reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment"].)
Nguyen contends the dismissal was "patently unfair" and that the trial court abused its discretion. However, Nguyen's opening brief does not include any citations to the record. Although he makes numerous factual assertions, we may not rely on them. (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 449.)
Nguyen asserts, for instance, that the government of Vietnam issued a two-year "No-Exit" order that prevented him from leaving Vietnam during 2019 and 2020, and that he is currently in Ho Chi Minh City "and has not yet been able to travel due to the world pandemic." However, Nguyen provided no citations to the record to support those assertions and we are not aware of any supporting evidence in the record.
He also claims that his counsel attended the September 23, 2019 hearing and informed the trial court that Nguyen was not able to attend because of the No-Exit order. Nguyen claims the trial court "did not find any failures in the litigation during the prosecution of the lawsuit but determined to dismiss the [action] only based on the failure of appellant to personally appear at the court hearing." Again, though, Nguyen provided no citations in support of these claims and, as noted above, there is no record of any oral proceedings from the trial court.
Nguyen has also failed to provide any relevant legal authority in support of his arguments that the dismissal was unfair and the trial court abused its discretion. He cites just two cases, but neither supports his arguments. In Dew v. Appleberry (1979) 23 Cal.3d 630, the California Supreme Court held that a defendant's amenability to service of process is irrelevant under the tolling provision of Code of Civil Procedure section 351, "and that the statute of limitations applicable to plaintiff's tort action was tolled during the period of defendant's absence from the state." (Dew v. Appleberry, supra, at p. 632.) In Fielding v. Iler (1919) 39 Cal.App. 559, the court held that aggregated absences from the state were sufficient to toll the statute of limitations.
Code of Civil Procedure section 351 has been held unconstitutional as violative of the federal dormant commerce clause in other contexts. (See Arrow Highway Steel, Inc. v. Dubin (2020) 56 Cal.App.5th 876.)
However, we are not confronted with a statute of limitations issue here. Instead, we are presented with an order of dismissal for a failure to appear and Nguyen has cited no authority governing such situations.
We are aware that, although courts have the inherent authority to dismiss an action with prejudice, they should exercise that authority only in extreme situations. (Code Civ. Proc., §§ 581, subd. (m), 583.150; Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799, citing Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915 ["a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice"].) Such extreme circumstances may include, though, "when the court issues a directive that the party fails to obey." (Del Junco, supra, at p. 799.)
Although Nguyen currently claims that his failure to appear was not willful, the limited record before this court shows that the trial court set the matter for a mandatory settlement conference and trial, and Nguyen failed to appear at both, including after issuance of an order to show cause to appear at trial. There is no evidence in the record that Nguyen or his attorney submitted any materials to the trial court in advance of the September 18 settlement conference or September 23 trial date to document or attempt to explain his continued inability to appear. The record before this court shows only that Nguyen failed to appear and failed to provide any explanation to the trial court.
By contrast, they had submitted such materials to the court in support of the initial ex parte application and motion to continue trial.
Because Nguyen has failed to show any error, we must presume the trial court's order was proper. (Maria P., supra, 43 Cal.3d at pp. 1295-1296.)
Disposition
The order of dismissal is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Danner, J.