Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV075255
RUSHING, P.J.
Defendant Timothy Gens (Gens) brings this appeal from an order granting an application by plaintiff Hopkins & Carley (H&C), a law firm, for a right to attach order and writ of attachment to secure the payment of sums claimed to be due under a contract for legal services. Gens contends that the trial court abused its discretion by refusing to continue the hearing on the attachment motion and to consider his belatedly offered opposition. Because the appellate record fails entirely to support the claim of error, we will affirm the order.
Background
In his notice designating the contents of the clerk’s transcript, Gens sought inclusion in the record of only the six items required by the governing rule (Cal. Rules of Court, rule 8.122(b)(1)), plus the record designation itself. As a result, the clerk’s transcript contains only the right to attach order, the notice of appeal, the designation of the record on appeal, and notices concerning preparation of the record. We granted H&C’s motion to augment the record to include its moving papers and proofs of service filed in the trial court. Gens later moved to augment the record with materials from another proceeding, but we denied that motion, which was defective in multiple respects, including failure to specifically identify and attach copies of the materials he sought to add to the record. Thus, while both briefs advert to various matters outside the record, we are confined to the matters properly before us.
Perhaps most notably, we must disregard H&C’s assertion that Gens is “an out-of-state attorney” and its ensuing characterizations of him as a “trained attorney.”
From these materials it appears that the proceeding was commenced on November 21, 2006, when H&C filed its application for a right to attach order and writ of attachment. The application recited that it was to be heard on January 25, 2007. In a supporting declaration, H&C shareholder William Klein averred that in March 2004, by an attached written contract, Gens had engaged H&C to represent him in a lawsuit against a former business partner; that H&C had rendered services pursuant to that agreement, for which Gens owed H&C some $456,000; that after being excused as his counsel in the lawsuit, and after giving him notice of his right to arbitrate, H&C had commenced a proceeding against Gens before the American Arbitration Association; that it expected to receive an award in that proceeding in the amount claimed; and that it sought a writ of attachment to secure payment of that amount, due to its belief that without such a remedy any award would be rendered ineffective. H&C proposed to attach, among other things, real property at a stated location on Old Trace Road in Palo Alto. This was the location given in the underlying contract as Gens’s “current mailing address.”
On January 18, 2007, H&C filed several declarations from process servers concerning efforts to serve the application and related papers on Gens. These indicate that over the three weeks commencing on December 10, 2006, servers made at least 30 attempts to personally deliver the moving papers to Gens. Apparently, most or all of these efforts took place at or near the Old Trace Road address. On January 2, 2007, service was achieved at that address as follows: “I was sitting down the street and witnessed Timothy Gens outside the property. I had viewed a picture of Mr. Gens and verified it was him . . . . After Mr. Gens went inside I waited ten minutes and went to the door. Timothy asked who it was and at that time I explained to him that I saw him and was going to serve him. His wife then began yelling through the door saying it wasn’t him and he wasn’t there. I explained I wasn’t talking to her and I was talking and serving Timothy personally. She continued to yell through the door and I stated they could take it up with the courts and I would appear to verify that it was Timothy Gens. Personal service was obtained.”
The declarations suggest that good service may have been achieved earlier, on December 11, 2006, in an attempt described by the server as follows (all italics added): “A man in his forties or fifties asked what I needed, but wouldn’t open the door. I asked for Timothy. The man said that was his dad who was not home. When I asked if he would open the door, his attitude became confrontational and he said he was going to call the police. I told him that I had suspected that he was Timothy Gens. I further told him that if he wished to show ID and if indeed he was not Mr. Gens, I would not serve a copy of the documents on him[.] He repeated that he was going to call the police. I then indicated to him that I was serving him and left a copy of the documents on the door step[.] I then left the property.” Two days later, another server spoke by phone to Gens, who claimed to be in Arizona. The server asked “why his family threatened to call the police,” to which Gens replied that “he had a teenage son who thought it was someone from soccer and was frightened.” While this evidence does not positively show that the man at the door was Gens, it does support a reasonable inference to that effect.
Also on January 2, 2007, copies of the motion papers were placed in the mail addressed to Gens at the Old Trace Road address and at a Palo Alto post office box. On January 24, 2007, H&C filed a “Notice Of No Receipt Of Opposition To Motion For Writ Of Attachment,” reciting that January 18 had been the last day to file opposition and that none had been received.
On Thursday, January 25, 2007, the application came on for hearing. Gens appeared and seemed to suggest, in remarks we discuss at length below, that he did not receive enough notice of the application to prepare an adequate and timely response. He said that he had prepared a “written opposition with a declaration that with the permission of the court I would file with the court. [¶] Now, in this opposition I do state that, first of all, I would move for a continuance of today’s hearing until I can properly prepare a full opposition because I didn’t get to see the papers in the file itself.” He also moved, or expressed an intention to move, “to quash service of process,” because “service of process was filed with the court” but he had “not received any such service of process . . . .” He expressed an intention to bring a malpractice claim against H&C in an unspecified amount, and to seek “the return of a substantial amount of fees that have already been paid,” apparently on the grounds that “there were written budgets that were overrun,” and that H&C had “billed $500,000 in preparation for a trial on March 20th, 2006, which was declared a mistrial.”
The court acknowledged Gens’s right to assert claims and counterclaims and added, “This is not a final determination of the issues that exist in this case.” It then pronounced its ruling as follows: “Number 1, there is proof of service in the file. And as I reviewed the file, as it relates to the subject of proof of service, I can’t recall ever seeing more evidence indicating an attempt to avoid service of process by an individual than what I have seen in reviewing this file. It appears to me that you were ducking process for a long period of time. So let me just say that. [¶] You did not file the opposition within time. I believe that you did have proper notice, therefore the motion is granted.” The court issued the right to attach order, and Gens filed this timely appeal.
Discussion
Gens argues that the trial court abused its discretion by denying a continuance and “refus[ing] the filing and consideration of opposition papers at the writ hearing.” The record is grossly insufficient to sustain these claims of error.
A party seeking to oppose a right to attach order is required to file a notice of opposition, with supporting declaration, “no later than five court days prior to the date set for the hearing . . . .” (Code Civ. Proc., § 484.060, subd. (a).) If he fails to do so, he “shall not be permitted to oppose the issuance of the order.” (Ibid.) The court may, “in its discretion and for good cause shown,” “grant the defendant a continuance” of the hearing “for a reasonable period to enable him to oppose the issuance of the right to attach order.” (Code Civ. Proc., § 484.080, subd. (b).)
The trial court’s ruling on a motion to continue is subject to reversal only for a manifest abuse of discretion. Such an abuse may appear where the denial “ ‘has the practical effect of denying the applicant a fair hearing.’ ” (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) However, for this or any error to sustain a successful appeal, it must affirmatively appear from the appellate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [“a party challenging a judgment has the burden of showing reversible error by an adequate record”]; County Nat. Bank & Trust Co. of Santa Barbara v. Sheppard (1955) 136 Cal.App.2d 205, 223 [“Appellants having the burden of showing error, it was incumbent on them to make it affirmatively appear that error was committed.”]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 334, p. 385 [reviewing court “is ordinarily confined . . . to the proceedings that took place in the court below and are brought up for review in a properly prepared record on appeal”]; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [“Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].”].)
The only cogent suggestion of error put forward by Gens is that the trial court wrongly refused to hear his claim of “surprise.” ~(AOB 9)~ But the record contains no indication that Gens made so much as a threshold showing that he was “surprise[d]” in any sense bearing on the propriety of the order under review. The only surprise that might be relevant would be failure to learn of the application for writ of attachment, or inadequate notice of its tenor, in time to file timely opposition. Gens never claimed to have suffered such surprise, at least in the kind of plain and unequivocal terms the trial court was entitled to expect and require. Indeed, he does not unequivocally claim it on appeal.
He also suggests that the challenged actions “denied” his “right to legal counsel” and “right to due process,” but we dismiss this observation as a bald conclusion of law unsupported by fact, citation to authority, or legal argument. (See County Nat. Bank, supra, 136 Cal.App.2d at p. 223.) We may also disregard his unilluminated statement that “[t]ime was not of the essence,” at the intended meaning and supposed pertinence of which he leaves us to guess.
His approach to the matter, below and here, is exemplified by the statement that he was deprived of the opportunity “to read the application for the [w]rit and proof of service.” This statement combines two distinct factual premises into a single conjunction that is logically true if either premise is true, i.e., if he lacked an opportunity to read the moving papers, or he lacked an opportunity to read the proof of service. A lack in the first respect would have some bearing on his entitlement to a continuance, because without an adequate opportunity to review the moving papers and challenge their contents, Gens might contend that he was deprived of a fair hearing. But, as may be portended by his very marriage of that proposition to another one, the record fails to establish, or even plainly suggest, any such lack of opportunity. According to the proofs of service, at least one copy of the moving papers was served on Gen personally at the front door of his home, and a second copy was left in the same place with a person who was probably also Gens, and in any event appeared to be an adult and not, as he later asserted, a teenage son. (See fn. 2, ante.) Two more copies of the moving papers were mailed to him, one of them at his home.
The declarations thus tended to show, by direct and unequivocal averments under penalty of perjury, that Gens received at least one copy of the papers no later than 22 days before the hearing, plus one to four additional copies. Based on this showing the trial court expressly found that Gens “did have proper notice” of the motion. This finding is unimpeachable on appeal, and indeed Gens mounts no coherent challenge to it. As against the unequivocal and detailed evidence on which it rests, the record supplies only the most tenuous basis to even entertain the possibility that Gens did not receive copies of the motion well in advance of the hearing. This suggestion depends entirely on his oral remarks at the hearing. Before examining them we note that, not having been made under oath, they were not competent evidence of anything. (Cal. Rules of Court, rule 3.1306(a) [“Evidence received at a law and motion hearing must be by declaration or by request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.”]; Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379 [“An unsupported assertion below does not become a “fact” on appeal simply by repetition.”].) Even if Gens had made these statements under oath, they were too vague and equivocal to constitute reliable evidence. (See Hoffman v. City of Palm Springs (1959) 169 Cal.App.2d 645, 649 [“The chief test of the sufficiency of an affidavit is whether it is so clear and certain that an indictment for perjury may be sustained on it if false.”].)
Instead of direct and unambiguous assertions of historical fact, Gens offered a series of equivocations that seem like a denial of adequate notice without actually constituting such a denial. The first such statement was, “I found out about this action . . . [two nights before the hearing] . . . [while] checking on another case that I have pending before the court.” The trial court could reasonably view this as an obfuscation in the guise of poor word choice. Thus Gens opens the statement of facts in his brief on appeal by asserting that H&C “filed a Petition and Declaration on November 21, 2006,” which “were never served nor is there any proof of service in the court’s file.” (Italics added.) On a quick reading it might be supposed that “petition” is a misnomer for the application for an attachment, and that Gens is denying any service of that application. But as we have noted, ample proofs of service were filed in the trial court a week before the hearing. This fact supports a surmise that Gens is referring to some other pleading filed by H&C at the same time as, but not served together with, the application for a writ of attachment. This lends substance to the otherwise nebulous possibility that in denying earlier knowledge of “this action” in the trial court, he secretly meant not the attachment proceeding, but the proceeding embodied in the “petition” thus alluded to on appeal. This makes all the more conspicuous what he does not state, and did not state in the trial court: that he first learned of the attachment proceeding two days before the hearing, or at some other stated time, under stated circumstances. In this light, the phrase “found out about” also comes under suspicion; against a later charge of misrepresentation, it might be defended as meaning only that he had learned some unspecified information “about” the proceedings, not that he had theretofore lacked notice of the application for an attachment. Similarly his later statement that he “didn’t know about this until one court date prior to the hearing” could mean almost anything.
These statements are offered without record citation in apparent violation of the rules of court. (See Cal. Rules of Court, rules 8.204(a)(2)(C), italics added [appellant’s brief must include “a summary of the significant facts limited to matters of record”], 8.204(a)(1)(C) [all briefs must “[s]upport any reference to a matter of record by a citation to the volume and page number of the record where the matter appears”].)
Gens complained below that when he had attempted to examine the file the day before the hearing, it “had already been pulled and pending for [sic] this hearing.” But the unavailability of the file for inspection appears immaterial if Gens already had copies of the moving papers. So too, his claim that he “didn’t get to see the papers in the file itself” is pregnant with, and certainly fails to deny, his having received his own copies from process servers.
Gens seemed to come closest to an unambiguous denial of adequate notice when he told the court, “The website tells me that, in fact, service of process was filed with the court on January 18th, I believe. I have not received any such service of process, I don’t know who it was served on, where, when. I have a declaration stating that attached to my opposition here.” (Italics added.) But this could quite reasonably strike the trial court as a carefully worded evasion, avoiding unequivocal falsehood only by investing the phrase “service of process” with the meaning, “proof of service of process.” What was filed with the court on January 18th was the proofs of service showing that Gens had been served with the moving papers. Thus the second sentence of the quoted comment could later be claimed to mean, consistent with the first, “I have not seen the proofs of service,” rather than, “Process was never served on me.”
So construed the statement is immaterial to any claimed denial of opportunity to respond to the application for attachment. We know of no requirement that a party served with process be shown the proofs of service before they are submitted to the court to establish the fact of service. A review of the relevant statutes strongly suggests the contrary. Proof of service under the Attachment Law is governed by the relevant portion of the Enforcement of Judgments Law. (Code Civ. Proc., § 482.070, subd. (d).) That law in turn provides that where service of a notice is required, “proof of service of the notice shall be made at or before the hearing to the satisfaction of the court.” (Code Civ. Proc., § 684.210, italics added.) To allow the moving party to delay presentation of the proof of service until the hearing seems at odds with any requirement that a copy be provided to the party served prior to the hearing. Nor would such a requirement serve any apparent purpose. “Jurisdiction depends on the fact of service, rather than the proof thereof. [Citations.] Consequently, if the process is in correct form, properly issued and served, and the proof of service is timely filed with the clerk, a defective affidavit [of service] will not destroy jurisdiction; the court may permit an amendment of the affidavit to conform to the facts.” (Judicial Council com., 14B West’s Ann. Code Civ. Proc. (2004 ed.) foll. § 417.10, p. 160; italics added.) Since the relevant question is whether service has in fact been perfected, the party who is claimed to have been served may fairly be expected to raise any failure or defect of service based on his own knowledge; he need not first inspect the serving party’s proofs. If he is aware of no attempt at service, he may so state. If he is aware of attempts that he considers defective, he can state the pertinent facts as perceived by him. Here Gens never so much as asserted that he had not been served with the moving papers. Nor did he attempt to specify any deficiencies in the attempted service. Any suggestion that he was unable to frame a response to the application until he saw the proofs of service is wholly unsupported by the present record.
No error appears in the denial of a continuance.
Gens offers even less reason to suppose that the court erred by not considering the written opposition he offered at the hearing. The Attachment Law makes no provision for accepting late opposition; indeed it declares unconditionally, “If the defendant fails to file a notice of opposition within the time prescribed, the defendant shall not be permitted to oppose the issuance of the order.” (Code Civ. Proc., § 484.060, subd. (a).) We need not reach H&C’s contention that the trial court has no power to make an exception. It is enough that this provision weighs heavily against any exception, and that where a failure to make timely opposition is found excusable, the heavily preferred course is to grant a continuance, accept the defendant’s opposition, and permit the applicant to file the reply authorized by the statute. (Code Civ. Proc., §§ 484.080, subd. (b), 484.060, subd. (c).)
Nor does the record substantiate Gen’s claim that the court erred by “refus[ing] the filing” of the late-proffered papers. At the hearing Gens said he had “prepared a written opposition with a declaration that with the permission of the court I would file with the court.” The court never ruled on this request, and Gens never asked for a ruling. Nor is there any indication that the opposition was ever actually presented to the clerk for filing, or that the latter refused it. Supposing that occurred, it was incumbent upon Gens to put the occurrence on the record by, e.g., asking the court to order the clerk to accept the papers. Had the court refused, he could at least claim error, though it might be impossible to make the additional required showing of prejudice without an offer of proof as to the contents of the refused materials, with particular attention to how exactly they demonstrated good cause for the failure to file timely opposition. Had the court refused even to permit such an offer of proof, an occasion might be provided for appellate relief, perhaps by extraordinary writ. As it stands, the record fails entirely to show a “refusal” to permit the filing of Gens’s late-offered papers. A fortiori, neither that supposed error nor any of the others posited by Gens actually affected the result.
To be effective, such an offer would have to disclose, as his declaration would have to disclose, the specific facts on which Gens proposed to make his opposition. (See Code Civ. Proc., § 482.040 [“The facts stated in each affidavit filed pursuant to this title shall be set forth with particularity.”].)
Disposition
The order appealed from is affirmed.
WE CONCUR: PREMO, J., ELIA, J.