Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV802789
BAMATTRE-MANOUKIAN, J.
I. INTRODUCTION
This litigation stems from appellant Ching Ching Lee’s 1998 purchase of a commercial building in Mountain View from respondent Mali Kuo. In 2001, Lee and her husband, appellant Wen Shiung Liu, filed a complaint in which they alleged that Kuo and respondent Oran Chang had committed fraud in connection with the sale. Appellants sought money damages of no less than $2 million, punitive damages, a constructive trust, and an accounting of the various monetary transactions between the parties. Kuo responded by filing a cross-complaint in which she alleged that as a result of their transactions appellants owed her at least $1 million.
During the lengthy litigation, the issues were narrowed by an August 8, 2006 order granting Kuo’s motion for summary adjudication; the trial court’s January 18, 2007 order adopting the findings of a court-appointed referee, accountant Charles W. Helfrick; and the March 19, 2007 order granting Kuo’s motion for judgment on the pleadings. The remaining issues, which included respondents’ alleged concealment of over $700,000 in deeds of trust on the Mountain View property, as well as Kuo’s claim that appellants owed her money as a result of their various monetary transactions, proceeded to trial on September 10, 2007.
Appellants did not appear at the September 10, 2007 trial. By that time, they had made a number of prior requests for trial continuances, their attorney had withdrawn, and they were unrepresented. However, a new attorney appeared on appellants’ behalf at the September 10, 2007 trial for the limited purpose of requesting another trial continuance. The trial court denied the request, finding that appellants failed to show that they had made a good faith effort to secure counsel or that Lee’s physical condition had prevented her from participating in the trial. Respondents then requested that the complaint be dismissed under Code of Civil Procedure section 581, subdivision (l) due to appellants’ failure to appear for trial. The trial court granted the request and dismissed the complaint. The matter immediately proceeded to a court trial on the fourth amended cross-complaint, which resulted in an award totaling $362,806.02 in Mali Kuo’s favor. Judgment was entered on October 19, 2007.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On appeal from the judgment, appellants argue that the trial court erred in (1) dismissing their complaint when they failed to appear for trial, or, alternatively, failing to imposing a lesser sanction than dismissal of the complaint; (2) denying their motion to continue the September 10, 2007 trial date; (3) adopting the referee’s report since the referee exceeded his authority; and (4) granting respondent,’Kuo’s, motion for judgment on the pleadings and denying leave to amend the complaint. For the reasons stated below, we conclude that none of appellants’ claims of trial court error have merit and therefore we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Our summary focuses upon the facts and procedural history relevant to the issues raised on appeal, as set forth in the record available in this appeal.
A. The Pleadings
Appellants Lee and Liu filed a complaint against respondents Mali Kuo, Oran Chang, and Agold Corporation on November 2, 2001. They asserted that Lee was a recent immigrant who had been befriended by Kuo and had come to rely on her for financial and investment advice. During their financial dealings together, appellants gave Kuo over $1 million to invest, based on her alleged promise of a great return on their investment. Appellants claimed that Kuo’s promise was fraudulent and they subsequently lost more than $1 million and suffered damages of at least $2 million.
In her fourth amended cross-complaint filed December 13, 2004, Kuo states that Agold Corporation is “a corporation affiliated with [Kuo].”
Appellants further alleged in their complaint that Kuo had convinced Lee to accept a “transfer from Agold Corporation [of] the ownership” of a commercial property in Mountain View, while concealing the fact that the property was encumbered by deeds of trust totaling more than $700,000. Kuo also allegedly induced Lee to transfer 51 percent of her interest in the Mountain View property to respondent Oran Chang without any consideration by promising that the transferred interest would be used “to obtain money and other valuable property.” Based on these allegations, appellants asserted causes of action for fraudulent misrepresentation, concealment, fraud, breach of oral contract, breach of fiduciary duty, constructive trust, money had and received, negligence, and an accounting.
Kuo answered the complaint and filed a cross-complaint. Her fourth amended cross-complaint was filed on December 13, 2004, and named several cross-defendants, including Lee, Liu, Unistar Technology Company, Jane Sun, and Sun & Sons, LLC. Kuo alleged that in 1995 she entered into an agreement with Lee and Liu “to assist each other with advances and loans of money.” She further alleged that the parties had agreed to postpone “the balancing of their respective accounts” until Lee and Liu had obtained “a permanent residence visa from the United States Immigration and Naturalization Service (a ‘green card’).” Kuo claimed that Lee and Liu had obtained their green cards but had yet to pay her more than $1 million owed to her under their agreement. She asserted causes of action for breach of contract, money had and received, defamation, breach of contract, and fraud.
The fourth amended cross-complaint asserts that Unistar Technology Company is “a corporation closely affiliated with Cross-Defendants Lee and Liu.”
Jane Sun and Sun & Sons, LLC are not parties to this appeal.
B. Pretrial Proceedings
On June 8, 2006, Kuo filed a motion for summary adjudication of the causes of action for concealment, fraud, breach of contract, and constructive trust in appellants’ complaint. The trial court denied the motion as to the cause of action for constructive trust and granted the motion as to the other causes of action (with the exception that summary adjudication of the cause of action for concealment was granted only as to defendant Liu). The trial court’s ruling, as set forth in its order of August 8, 2006 was based on its finding that it was undisputed that Kuo did not grant Liu title to the Mountain View property, and therefore Liu lacked standing to assert a cause of action for concealment. The trial court also found that it was undisputed that the promise by which Kuo allegedly induced Lee to transfer a 51 percent interest in the Mountain View property to defendant Oran Chang was made after the transfer took place. Additionally, the court determined as a matter of law that the breach of contract claim was time-barred. Defendant Chang’s attempted joinder in the motion for summary adjudication was denied.
Trial originally began on August 28, 2006, but was recessed when the parties stipulated to a reference for an accounting. An amended order re special reference was filed on September 29, 2006, that appointed Charles W. Helfrick, C.P.A., to report on “various long account issues” pursuant to section 639. Helfrick subsequently submitted five letters dated December 7, 2006 that comprised his report on the accounting issues. Kuo filed a motion to confirm the referee’s report on December 29, 2006. On January 18, 2007, the trial court issued its order adopting Helfrick’s findings in their entirety. The trial court also issued an order after pretrial hearing on February 16, 2007, in which the court ruled, among other things, that the court retained jurisdiction to modify at the time of trial Helfrick’s finding that “there was a net distributable amount of income from [the Mountain View property], but that is was impossible to determine whether [Liu] [or] any of the partners received any share of the net distributable income found to exist for the stated period.”
Kuo filed a motion for judgment on the pleadings on March 13, 2007, as to the fifth cause of action for breach of fiduciary duty. She argued that the cause of action for breach of fiduciary duty was uncertain and failed to state facts sufficient to show the existence of a fiduciary relationship between Kuo and Lee. Kuo also pointed out that the trial court had previously rejected Lee’s attempts to amend the complaint to allege a breach of fiduciary duty based upon the transfer of a 51 percent interest in the Mountain View property from Lee to Chang. Lee filed an opposition to the motion in which she argued there was evidentiary support for her breach of fiduciary duty claim.
The trial court granted the motion for judgment on the pleadings on March 19, 2007. In its order, the court noted that “[a]s a consequence of the summary adjudication order, the order confirming the accounting analysis, and orders granting defendants’ motions in limine, the scope of the trial was reduced to two potential causes of action: the Second, for Concealment (solely as to Plaintiff Ching Ching Lee) and the Fifth, for Breach of Fiduciary Duty, and Defendant Kuo’s remaining cross-complaint.” Further, the court observed that it was “now established as the law of the case that Kuo is not liable for fraud arising out of the [Mountain View] property, the transactions between Plaintiffs and Kuo were loans, not investments, and the passing of monies back and forth have been sorted out by the Helfrick report and confirmed by Court order.” The trial court ruled that Kuo did not owe a fiduciary duty to Lee and Liu based on its findings, in light of the court’s prior orders and the allegations of the complaint, that Lee and Liu had alleged nothing more than “a general expression of trust and confidence” in Kuo and had failed to allege they suffered any damages as a result of Kuo’s alleged breach of fiduciary duty. The court also overruled the timeliness objection made by Lee and Liu and denied their request to amend the complaint.
Thereafter, jury trial was set to begin on March 27, 2007, on the cause of action for concealment and the cross-complaint. However, the minute order for March 27, 2007 states that Lee was “taken ill during in chamber settlement discussions” and left to go to the emergency room. Later that day, Lee requested a trial continuance, which the court granted. The order subsequently filed on April 11, 2007, states that trial was continued to June 25, 2007 and “[n]o further requests for continuances by Plaintiffs will be granted, including but not limited to requests based upon: (1) substitution of counsel; (2) illness of any Plaintiff or Plaintiff’s counsel; (3) unavailability of Plaintiff’s witnesses or counsel.”
On the same day the trial continuance order was filed, April 11, 2007, attorney Jerry Y. Fong filed a motion to withdraw as attorney of record for Lee and Liu. The motion was granted by an order filed on May 16, 2007. The order granting attorney Fong’s motion to withdraw was served on Lee and Liu by mail on May 17, 2007, and stated that a jury trial was to begin on June 25, 2007.
On June 19, 2007, Lee and Liu filed an ex parte application for an order shortening time for a motion to continue the trial and reopen discovery. The motion stated that attorney Linda Shao was appearing for Lee and Liu under a “limited scope of representation for this motion only.” In the motion, Lee and Liu asserted that a trial continuance was needed because they had been abandoned by their counsel, “vital witnesses” had not been deposed, there had been a significant delay in obtaining their files from prior counsel, and despite diligent efforts they had not been able to obtain a new attorney for this “complicated case.”
The trial court granted the motion to continue the trial on June 19, 2007, but stated in its order that “the order granting a continuance is not without limitation. The Court had serious reservations about granting a continuance in light of the extended history of this case, but is of the opinion that plaintiffs are ultimately entitled to secure new counsel as a result of the recent withdrawal of their former attorney, Mr. Fong. Further, the Court disagrees with the accusation that plaintiffs were abandoned by Mr. Fong. The Court’s order is therefore limited to the purpose of allowing plaintiffs sufficient time to obtain counsel to represent them at trial, and for that counsel to prepare for trial.” The trial court denied the request to reopen discovery and set a trial setting conference for June 25, 2007. Additionally, the court directed the parties to make their “best efforts” to agree upon a trial date “between 90 and 120 days from the date of the trial setting conference.”
At the trial setting conference held on June 25, 2007, attorney Linda Shao again appeared for Lee and Liu. The minute order of June 25, 2007, states that the trial court urged Shao to have Lee and Liu obtain trial counsel as soon as possible. On June 27, 2007, the court set a trial date of September 10, 2007. Attorney Shao expressly agreed to the September 10, 2007 trial date on behalf of Lee and Liu. The clerk of the court served a notice of settlement conference and trial on Lee and Liu by United States mail on July 9, 2007, that stated that the parties were to appear at a September 5, 2007 settlement conference and a September 10, 2007 trial.
The settlement conference was held on September 5, 2007, as noticed. Lee did not appear, but the record reflects that Lee and Liu requested a continuance of the September 10, 2007 trial date. The minute order of September 5, 2007, indicates that the trial court denied the request for a trial continuance and imposed sanctions of $500 on Lee for her failure to appear at the settlement conference. However, the court stayed the sanctions order until September 10, 2007, to give Lee “the opportunity to provide the Court with a declaration by a [doctor] as to why she was unable to attend today.”
On September 7, 2007, Lee and Liu made an ex parte request for a trial continuance. Lee provided her own declaration with a doctor’s note attached, which did not comply with the trial court’s previous order. Lee and Liu also provided a letter from attorney Dale Chen stating that he was unable to appear but had agreed to take the case if the trial was continued. The trial court denied the motion to continue the trial date.
The record indicates that the attorney for respondent Chang advised the trial court that the “doctor’s note is insufficient, basically it says she needs rest and exercise.”
Neither the doctor’s note attached to Lee’s declaration nor the declaration itself, which was apparently submitted in connection with the September 5, 2007 motion to continue the September 10, 2007 trial date, was included in the record on appeal.
No record of the proceedings of September 7, 2007, was included in the record of appeal. However, the trial court summarized the September 7, 2007 minute order during the proceedings of September 10, 2007.
Thereafter, on September 10, 2007, attorney Chen appeared for Lee and Liu for the purpose of making another request to continue the trial date. Attorney Chen stated that Lee could not be present due to a “medical condition” and that he had been retained the Saturday before the Monday trial. However, Chen clarified that the request was not being made on the basis of Lee’s physical condition. He explained that he was asking for a continuance in order to have time to prepare for trial, and that he would not represent Lee if the trial was not continued. Chen also advised the court that he was asking for a 90-day continuance but “hoping for six months.” Respondents opposed any further continuances, asserting that they were prepared to try the case and Kuo had interrupted her business to fly back from Asia for the trial.
If a written motion to continue the September 10, 2007 trial date was filed by Lee and Liu, our record lacks a copy.
The trial court denied the motion to continue the September 10, 2007 trial date, as set forth in the order of September 26, 2007, and ordered Lee to pay the previously ordered $500 sanction within 30 days of the notice of order. The trial court explained that the motion to continue was denied because “there has been plenty of opportunity for Plaintiff to secure counsel.... I am not convinced that a good faith effort has been made to secure counsel nor am I convinced, frankly, that the physical condition of the Plaintiff is such that she cannot participate in this trial with or without counsel.... [A]s far as what has been presented to the Court, it is not sufficient.”
C. Trial Proceedings
After the motion to continue the September 10, 2007 trial date was denied, attorney Chen was excused and allowed to leave the courtroom. Kuo immediately requested that the complaint be dismissed pursuant to section 581, subdivision (l) because Lee had failed to appear for trial. The trial court granted the request and dismissed the complaint without prejudice. Kuo’s attorney informed the court that Liu was outside the courtroom speaking with attorney Chen, and that he had spoken to Liu and offered him “the opportunity to be here.” The court then stated, “The record should reflect that Mr. Liu is not present, but he is in the back outside the courtroom. He has been advised of the proceeding and he is not in attendance.”
During the proceedings of September 10, 2007, both Kuo and Chang waived their right to a jury trial on the cross-complaint. Thereafter, the cross-complaint proceeded to a court trial on September 10, 2007 and September 11, 2007, at which Kuo and John Salera, Kuo’s real estate expert, testified and a number of documents were admitted into evidence. Kuo testified that Agold Corporation had transferred the Mountain View property to Lee at Kuo’s direction as a loan repayment and that Lee did not put any new money into an escrow account at the time of the transfer. Salera testified that the value of the Mountain View property on June 10, 1998 was $2.85 million.
At the conclusion of the court trial, the court ruled that judgment would be awarded on Kuo’s cross-complaint in the amount of $230,000. Judgment was entered on October 19, 2007, in favor of defendants on the complaint and in favor of cross-complainant Kuo on the fourth amended cross-complaint in the total amount of $362,806.02 ($229,188.90 award plus prejudgment interest of $133,617.12).
The discrepancy between the $230,000 awarded at the conclusion of the September 10, 2007 trial, as set forth in the reporter’s transcript of that date and the filed judgment stating an award of $229,188.90 is not explained in the record or by the parties.
Lee and Liu subsequently retained a new attorney and filed a notice of intention to move for new trial and points and authorities in support of the motion on November 5, 2007. They argued that a new trial should be granted for two reasons. First, they argued that Liu had not been allowed to participate during the trial proceedings of September 10, 2007, although he remained a party. They also claimed that Liu had not waived this issue by failing to object at the time of trial because Liu had not made an express waiver. Second, Lee and Liu argued that the trial court had abused its discretion when it denied the motion to continue the trial made on their behalf by attorney Dale Chen on September 10, 2007. In their view, there was “ample evidence in the record of prior attempts to obtain counsel earlier by Plaintiffs and that their attempts were hampered by the short continuances granted for this purpose by the Court.... Mr. Chen, made it clear his willingness to represent Plaintiffs, if given time to prepare.”
The notice of intention to move for a new trial states a third ground, “the failure of the Court to rule upon the Request for Continuance made by Plaintiffs through attorney Wendy Lun, specially appearing on August 30, 2007....” However, the record on appeal lacks any indication of an August 30, 2007 request for a continuance.
Kuo filed opposition to the motion for new trial on November 26, 2007. She argued that dismissal of the complaint was proper because Liu was present at the time of trial on September 10, 2007, but had failed to object to the dismissal. Additionally, Kuo maintained that the trial court had not abused its discretion in denying the requests for trial continuances due to the procedural history of the case, the number of continuances previously granted, the limited issues remaining, plaintiffs’ lack of diligence with respect to obtaining new counsel, and Lee’s failure to appear at the settlement conference and to adequately justify her nonappearance. Kuo also noted that Lee and Liu had not provided copies of the minute orders reflecting their previous requests for continuances to support their claim of trial court error.
The trial court denied the motion for new trial in its order filed on January 9, 2008. The order stated that the motion for new trial was denied on the grounds that Lee and Liu had failed to serve a defendant, Oran Chang, with the motion; had failed to state all of the grounds for new trial with sufficient specificity; and had failed to “include the applicable minutes and/or orders of the Court with the Motion.” The order further stated that the motion was denied because Liu had been present in the courtroom on the first day of trial, but had failed to proceed on his own behalf or to “properly object” to the dismissal of the complaint. Additionally, the order stated that Liu had no standing to bring the cause of action for concealment against Oran Chang, the grounds for new trial “would not substantially affect his rights as a moving party or constitute prejudicial error,” and “the ruling on Mali Kuo’s motion for summary judgment to that effect constitutes collateral estoppel of the issue as against [Chang].”
III. DISCUSSION
On appeal from the judgment, Lee and Liu argue that the trial court erred in (1) dismissing their complaint when they failed to appear for trial, or, alternatively, failing to imposing a lesser sanction than dismissal of the complaint; (2) denying their motion to continue the September 10, 2007 trial date; (3) adopting the referee’s report since the referee exceeded his authority; and (4) granting respondent Kuo’s motion for judgment on the pleadings and denying leave to amend the complaint. We will address each issue in turn.
A. Dismissal of the Complaint
For several reasons, appellants contend that the trial court erred in granting Kuo’s motion under section 581, subdivision (l) to dismiss the complaint.
1. Section 594, Subdivision (a)
First, appellants assert that the trial court failed to comply with its duty under section 594, subdivision (a) to inquire whether the absent party had written notice of the trial date, and therefore the judgment is void.
Section 594, subdivision (a) provides, “In superior courts either party may bring an issue to trial or to a hearing, and, in the absence of the adverse party, unless the court, for good cause, otherwise directs, may proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the case may require; provided, however, if the issue to be tried is an issue of fact, proof shall first be made to the satisfaction of the court that the adverse party has had 15 days’ notice of such trial or five days’ notice of the trial in an unlawful detainer action as specified in subdivision (b). If the adverse party has served notice of trial upon the party seeking the dismissal, verdict, or judgment at least five days prior to the trial, the adverse party shall be deemed to have had notice.”
Respondents argue that appellants’ contention regarding the notice requirement of section 594, subdivision (a) lacks merit because appellants had actual notice, consisting of attorney Linda Shao’s agreement to the September 10, 2007 trial date on appellants’ behalf and the clerk of the court’s service of the notice of the trial date on July 9, 2007. Respondents also point out that attorney Dale Chen appeared at the September 10, 2007 trial on appellants’ behalf. Further, respondents argue that failure to introduce proof of service of the notice of trial is not a jurisdictional defect, and proof may include other competent evidence that the notice of trial was actually served, such as the judgment in the present case stating that notice was given.
Our resolution of the issue is guided by well established principles of appellate review. “ ‘ “ ‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver.... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ ” ’ [Citation.] “ ‘The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had....’ ” [Citation.] “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ [Citation.]” [Citation.]’ [Citation.]” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1558.)
Here, the record reflects that appellants were represented by an attorney, Dale Chen, at the time of the September 10, 2007 trial. Although attorney Chen requested a trial continuance that the trial court denied, he did not object to the trial proceeding in the absence of compliance with the notice requirement of section 594, subdivision (a). That section provides that before a trial on a fact issue proceeds in the absence of the adverse party, “proof shall first be made to the satisfaction of the court that the adverse party has had 15 days’ notice of such trial or five days’ notice of the trial.” (§ 594, subd. (a).) We believe that failure to comply with the requirements of section 594, subdivision (a) could have been easily corrected at the time of trial, and therefore we determine that appellants, by failing to object below, forfeited their claim that the failure to comply with section 594, subdivision (a) constitutes reversible error.
Even assuming that the issue was not forfeited, we would find the procedural error of failure to comply with section 594, subdivision (a) to be harmless. The California Supreme Court has instructed that “section 594(b) serves to promote the same policy objective as section 594(a) to prevent judgments where one party had no notice of trial. It does so in part by requiring that proof of notice made pursuant to section 594(a) be introduced into evidence at trial. But neither this clear statutory purpose nor the need to avoid a miscarriage of justice is served by reversing a judgment for failure to comply with section 594(b)’s evidentiary rule when it is clear from the record that the prevailing party provided actual, timely notice of the trial date to the defaulting party.” (In re Marriage of Goddard (2004) 33 Cal.4th 49, 58.) Thus, where “it is clear from the record that notice was given consistent with the provisions of section 594(a), but was simply not received into evidence pursuant to section 594(b)’s evidentiary rule, the error is subject to harmless error review and is not jurisdictional. [Citations.]” (Id. at p. 59.)
We agree with respondents that the record here clearly shows that notice of the trial date of September 10, 2007, was served on appellants by the clerk of the court by United States mail on July 9, 2007, in a notice titled “Notice of Settlement Conference and Trial.” Appellants have not argued that they were not served with the notice of the September 10, 2007 trial date or that the judgment against them was entered in the absence of notice of the trial date. Therefore, we find the lack of compliance with the notice requirement of section 594, subdivision (a) to constitute a harmless procedural error.
2. Dismissal of the Complaint
Appellants also argue that dismissal of their complaint was improper as to Liu’s claims against respondent Chang, since the prior motions for summary adjudication and judgment on the pleadings did not eliminate those claims. Additionally, they claim that the trial court erred because it “did not consider that doctors, notoriously haughty, when presented with a court order directing a party to obtain a declaration under penalty of perjury from a doctor as to his [or her] patient’s condition might very well consider such a directive an interference with physician-patient privilege and beyond the authority of the court....” (Emphasis omitted.) Alternatively, appellants assert that the trial court did not consider the possibility of a lesser sanction for their nonappearance at trial, such as monetary sanctions.
According to respondents, the trial court did not abuse its discretion in dismissing the complaint because Liu did not make an appearance at or proceed with the September 10, 2007 trial, nor did he object to the dismissal. Respondents also maintain that Liu had no standing with respect to the only fact issues remaining for jury trial, which concerned the Mountain View property in which the court had already ruled he had no ownership interest.
Our review is governed by the applicable standard of review for a dismissal order. Under section 581, subdivision (l), “The court may dismiss, without prejudice, the complaint in whole, or as to that defendant when either party fails to appear at the trial and the other party appears and asks for dismissal.” “Thus, a trial court’s decision to dismiss under this section will be overturned only upon a showing of a manifest abuse of discretion. [Citation.] Discretion is abused when the trial court’s ruling is arbitrary, capricious, exceeds the bounds of reason or prevents a fair hearing from being held. [Citation.]” (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321 (Link).)
We recognize, as the Link court observed, that “California law favors trying cases on their merits. [Citation.] This policy is not absolute, however. [Citation.] There is a countervailing policy, evidenced by the dismissal statutes, of expediting the administration of justice by compelling litigants to prosecute their actions with promptness and diligence. [Citation.] This prevents the prejudice that may result from the passage of time, such as lost evidence, faded memories and disappearing witnesses. [Citation.]” (Link, supra, 60 Cal.App.4th at p. 1321.)
For example, a dismissal order was upheld in Vernon v. Great Western Bank, supra, 51 Cal.App.4th 1007 where the plaintiff failed to appear at trial for the second time after receiving several trial continuances. The appellate court found that “[t]he failure to appear at trial was just another variation of [the plaintiff’s] established theme--a total failure to diligently prosecute her case--and no more was needed to justify the court’s order of dismissal.” (Id. at pp. 1012-1013.) Further, the court stated, “when [the plaintiff] invoked the power of the court to resolve her dispute with [the defendant], she agreed to abide by the rules designed to facilitate the orderly and equitable resolution not only of her dispute, but also of the thousands of other cases pending before the court at the same time. The power of dismissal is the court’s means of enforcing those rules, and it exists so the court can manage its own affairs and preserve respect for the integrity of its process. To permit a party to do what [the plaintiff] did in this case would eviscerate that power.” (Id. at p. 1013.)
On the other hand, a dismissal order was reversed in Link, although the plaintiff had failed to appear for trial, because the appellate court determined that the trial court had abused its discretion under the circumstances of that case. (Link, supra, 60 Cal.App.4th at p. 1326.) The appellate court’s review of the record revealed that the plaintiff had “prosecuted his case diligently,” “had appeared in court consistently when ordered to do so,” and had failed to appear on a trial date to which the case had been continued “with no prior notice to plaintiff, after he had already made his plans to leave the country for medical treatment.” (Ibid.) For that reason, the appellate court concluded that dismissal of the complaint was “simply too severe a punishment for the transgression” and there was no “reason to believe a less severe sanction than termination, such as the imposition of a monetary sanction, would not be effective. [Citation.]” (Ibid.)
In the present case, we begin our analysis by emphasizing the general rule that “[j]udgments and orders are presumed correct on appeal, and the appellant bears the burden of overcoming that presumption by affirmatively demonstrating reversible error.” (Forrest v. State of California (2007) 150 Cal.App.4th 183, 194.) Moreover, “[t]he appellant must provide an adequate record to demonstrate that error.” (Ibid.) Where, as here, the standard of review is abuse of discretion, “there is a presumption in favor of the actions of the trial court to the effect that its discretion was properly exercised, and the burden and responsibility is on the appellant to affirmatively establish an abuse of that discretion.” (Mesler v. Bragg Management Co. (1990) 219 Cal.App.3d 983, 991.)
We find that, like the plaintiff in Vernon v. Great Western Bank, supra, 51 Cal.App.4th 1007, appellants failed to appear at trial after receiving more than one trial continuance. The available record indicates that the complaint had been pending since 2001 and that the trial dates of March 27, 2007 and June 25, 2007, were continued at appellants’ request. The March 27, 2007 trial date was apparently continued after Lee left the March 27, 2007 settlement discussions due to illness. The June 25, 2007 trial date was continued, after appellants’ attorney withdrew, for the purpose of allowing them to retain new counsel. The next trial date of September 10, 2007, was agreed to by appellant’s attorney, Linda Shao, on June 27, 2007. However, Lee and Liu failed to appear at the September 10, 2007 trial and their attorney, Dale Chen, requested a continuance to allow him to prepare for trial. In denying the request, the trial court found that although sufficient time had been allowed for appellants to obtain new counsel before the September 10, 2007 trial date, they had not shown that they had made a good faith effort to do so, nor had appellants shown that Lee’s physical condition prevented her from appearing at trial.
On this record, we determine that the trial court’s dismissal order was not arbitrary or capricious and therefore does not constitute an abuse of discretion. (Link, supra, 60 Cal.App.4th at p. 1321.) Moreover, we find that appellants fail to meet their burden to affirmatively establish an abuse of discretion because they point to nothing in the record that contradicts the trial court’s findings that they failed to make a good faith effort to obtain trial counsel to represent them at the September 10, 2007 trial and also failed to show that Lee’s physical condition prevented her from appearing at trial. Appellants merely make the conclusory assertions that a physician might refuse to provide a declaration regarding a litigant’s physical condition and that a lesser sanction than dismissal was warranted. However, another important principle of appellate review is that the “ ‘appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority.’ ” (Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 218.) Since appellants have failed to do so, we remain convinced that the trial court did not abuse its discretion.
For these reasons, we find no merit in appellants’ contention that the trial court erred in dismissing their complaint under section 581, subdivision (l).
B. Denial of Motion to Continue the September 10, 2007 Trial Date
Appellants argue that the trial court erred in denying their request for a continuance of the September 10, 2007 trial date, which was made on their behalf by attorney Chen at the outset of trial proceedings on September 10, 2007. We understand appellants to contend that the prior trial continuances granted by the trial court did not afford them sufficient time to find an attorney willing to try a complex matter with a lengthy history of litigation by September 10, 2007.
Respondents, however, assert that appellants had sufficient time, after attorney Fong moved to withdraw as attorney of record in April 2007, to obtain new trial counsel but they failed to diligently seek trial counsel during the five months before the September 10, 2007 trial date.
To evaluate appellants’ claim of trial court error, we begin by reviewing the procedure for obtaining a trial continuance, as set forth in California Rules of Court, rule 3.1332 (hereafter, rule 3.1332). Subdivision (a) of rule 3.1332 provides that trial dates are firm: “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” To obtain a continuance of the date set for trial, a party must make a noticed motion or ex parte application “as soon as reasonably practical once the necessity for the continuance is discovered.” (Rule 3.1332(b).) “Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: [¶]... [¶] The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice.” (Rule 3.1332(c)(4).)
Rule 3.1332 further provides that the trial court “must consider all the facts and circumstances that are relevant to the determination” of the request for a trial continuance, including, among other factors, “[t]he proximity of the trial date” and “Whether there was any previous continuance, extension of time, or delay of trial due to any party.” (Rule 3.332(d)(1), (2).) However, the trial court must balance the policy of “[d]elay reduction and calendar management” with the “strong public policy favoring disposition on the merits.” (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Thus, “ ‘[w]hile it is true that a trial judge must have control of the courtroom and its calendar and must have discretion to deny a request for a continuance when there is no good cause for granting one, it is equally true that absent [a lack of diligence or other abusive] circumstances... a request for a continuance supported by a showing of good cause usually ought to be granted.” (Id. at pp. 1246-1247.)
Accordingly, the standard of review that applies to an order denying a request for a trial continuance is abuse of discretion. This court has previously stated that “[r]eviewing courts must uphold a trial court’s choice not to grant a continuance unless the court has abused its discretion in so doing.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)
Here, the trial court chose not to grant appellants’ request to continue the September 10, 2007 trial date, based upon the court’s finding that appellants had failed to make a showing of good cause for the continuance. Specifically, the trial court found that appellants had failed to either make a good faith effort to secure trial counsel by the trial date or show that Lee’s physical condition prevented her from participating in the trial with or without counsel. The trial court also found that there had been “plenty of time for [appellants] to have secured counsel and to have been brought up to speed prior to trial, and that just hasn’t happened.” Additionally, the trial court considered defense counsel’s argument that the continuance should be denied because the trial had already been continued multiple times, respondent Kuo was present after flying in from Asia, defendants were prepared for trial, and defense counsel’s prior trial commitments would preclude setting another trial date in this case within the next six months. The trial court agreed with defense counsel that “[d]efendants have rights too and we need to move this forward.”
On appeal, appellants contend that the prior trial continuances granted by the trial court did not afford them sufficient time to find an attorney willing to try a complex matter with a lengthy history of litigation by the time of trial on September 10, 2007. However, their oral request for a trial continuance on the day of trial included only the following dialog regarding appellants’ efforts to find trial counsel by September 10, 2007:
“MR. CHEN: I understand the Plaintiff has made some diligent efforts to retain legal counsel in the past several weeks or past several months but has been unsuccessful because of the complexity of the case.
“THE COURT: “The case really isn’t that complex any more.”
“MR. CHEN: “I have heard that too, your Honor. I understand the issue might be focused down to a concealment issue.
“THE COURT: On the Plaintiff’s side, that’s correct. There is a cross-complaint as well.
“MR. CHEN: Yes.”
On this record, we determine that appellants again fail to meet their burden to affirmatively establish an abuse of discretion, since they have pointed to nothing in the record that demonstrates that they made a good faith effort to obtain trial counsel to represent them at the September 10, 2007 trial or that Lee’s physical condition prevented her from participating in the trial. For example, appellants did not present a declaration regarding the attorneys that they had contacted in an effort to obtain trial counsel, the dates of the contacts, and the response of the contacted attorneys. Moreover, attorney Chen clarified on September 10, 2007, that appellants’ request for a trial continuance was based on his need for time to prepare for trial, and not upon Lee’s physical condition. Therefore, in light of appellants’ failure to meet their burden on appeal, the prior trial continuances, and the agreement of appellants’ prior attorney to the September 10, 2007 trial date, we conclude that the trial court did not abuse its discretion in denying appellants’ day of trial request for a continuance of the September 10, 2007 trial date.
C. The Referee’s Report
Appellants contend that the referee, Charles Helfrick, exceeded his authority by “form[ing] an opinion a check for $15,540 was received by and deposited in an account by [Lee] over an objection that the signature on the check was a forgery and based only on a letter from the bank that the number on the check was appellant’s account number.” Appellants also contend that the trial court erred in adopting the referee’s report because the report was incomplete, since it failed to make findings on all issues submitted to the referee. (Emphasis in original.)
Respondents argue to the contrary that the referee properly determined that the $15,540 payment should be credited to Kuo because Kuo presented evidence of the payment, including a check and a deposit slip signed by Lee, while Lee presented no evidence to support her forgery claim. As to appellants’ contention that the referee’s report was incomplete, respondents argue that the trial court independently considered the evidence presented to the referee and reserved certain issues for trial.
Our review of the record indicates that the referee made the following findings regarding the $15,540 check in his letter dated December 7, 2006: “Item #10: The evidence provided by Kuo for this payment is a copy of a Postal Service Money Order dated 08/24/1998 payable to Ching Ching Lee in the amount of $15,540.00 and a Bank of the West Deposit Slip dated 08/28/1998 with reference to bank account [number] and a hand written notation on the deposit slip ‘Ching Ching.’ Lee/Liu object to this credit on the basis that the name ‘Ching-Ching’ that was hand written on the deposit slip is a forgery. [¶] Based on a letter from Bank of the West, account [number] is a bank account under the name of Ching Ching Lee. Based on the evidence supplied to me it is my opinion that the $15,540.00 was received and deposited into Ching Ching Lee’s account. Kuo should receive credit for this payment.”
To determine whether the referee exceeded his authority in making his findings regarding the $15,540 check, we first review an accounting referee’s authority under section 639. “By statute, a court may direct a special reference on a question of fact. ([§] 639.) ‘A reference by the trial court involves the sending of a pending action or proceeding, or some issue raised therein, to a referee for hearing, determination and report back to the court. The procedure is most commonly employed where complicated accounts can more conveniently be examined or taken outside of court.... [Citations.]’ [Citations.]” (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 175-176.) “The reference is allowed because a trained accountant is generally better able to efficiently and inexpensively examine a ‘long account’ than a trial court judge is able to do through adversarial proceedings.” (De Guere v. Universal City Studios, Inc. (1997) 56 Cal.App.4th 482, 499.)
Section 639 provides in part, “(a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: [¶] (1) When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein.”
The scope of the referee’s authority is limited to “ ‘ “the hearing and decision (or the finding) of the facts as to the account ordered by him [or her] to be examined.” [Citation.]’ [Citations.]” (Kim v. Superior Court (1998) 64 Cal.App.4th 256, 262.) The referee’s findings are only advisory and are not binding unless they are adopted by the trial court. (In re Marriage of Petropoulos, supra, 91 Cal.App.4th at p. 176.) The referee’s recommendations are nevertheless entitled to great weight. (Ibid.; Settlemire v. Superior Court (2003) 105 Cal.App.4th 666, 671.)
The referee’s power cannot exceed the “constitutional limitations on the delegation of judicial power to a referee.” (De Guere v. Universal City Studios, Inc., supra, 56 Cal.App.4th at p. 499.) It is well established, however, that a referee is a fact finder who is necessarily authorized to make credibility findings. (Settlemire v. Superior Court, supra, 105 Cal.App.4th at p. 673.) “They act properly and within their authority in doing so. [Citations.]” (In re Marriage of Petropoulos, supra, 91 Cal.App.4th at p. 176.)
In the present case, it is undisputed that the referee was entitled to make findings as to whether Kuo’s $15,540 check was deposited into Lee’s Bank of the West account pursuant to the trial court’s order of reference. We understand appellants to argue, however, that the referee exceeded his authority by forming an opinion that the deposit was not accomplished by means of a forgery. We find this contention to lack merit because the record shows that the referee only made the factual finding that the check was deposited into Lee’s account, and therefore the referee credited that payment to Kuo. The referee did not make any findings as to the existence of a forgery and his factual findings were within the scope of the accounting reference, which in part required the referee to “Calculate the amounts, if any, paid to, or for the benefit of, [Lee]... by [Kuo]....” Moreover, to the extent the referee’s factual findings regarding the $15,540 check involved a finding as to the parties’ credibility, the referee did not exceed his authority. (In re Marriage of Petropoulos, supra, 91 Cal.App.4th at p. 176.)
We are also not convinced by appellants’ argument that the trial court improperly adopted an incomplete referee’s report that did not address all of the issues required by the trial court’s reference order. The record on appeal lacks the objections to the referee’s report that were apparently filed by appellants and therefore we cannot determine whether appellants made their incompleteness objection below. We reiterate the general rule of appellate review that “ ‘ “ ‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method....’ ” ’ ” (In re Marriage of Nelson, supra, 139 Cal.App.4th at p. 1558.) Therefore, we determine that appellants have not shown that they preserved this issue for appeal.
The record contains Kuo’s opposition to appellants’ “objections to and other responses to the reports of accounting referee,” filed January 5, 2007. (Capitalization omitted.)
For these reasons, we conclude that appellants’ claims of trial court error in regard to the referee’s report lack merit.
D. Order Granting Motion for Judgment on the Pleadings
Finally, appellants contend that the trial court erred in granting Kuo’s motion for judgment on the pleadings on March 19, 2007. In that order, the trial court ruled that Kuo did not owe a fiduciary duty to Lee and Liu. According to appellants, the trial court should have denied the motion because a nonstatutory motion for judgment on the pleadings is unauthorized in light of the statutory motion for judgment on the pleadings authorized by section 438; the three-day notice of the motion constituted a denial of due process; the trial court abused its discretion in hearing the motion on such short notice; and the court abused its discretion in denying leave to amend the complaint. Appellants do not challenge the trial court’s substantive ruling regarding fiduciary duty.
Respondents point out that appellants opposed the motion for judgment on the pleadings and appeared at the hearing on the motion, and therefore they contend that appellants have waived any claim of procedural defects with respect to the motion.
We are not convinced by appellants’ arguments. First, it has been held a motion for judgment on the pleadings may be made at any time prior to trial or at the time of trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) Even assuming that a nonstatutory motion for judgment on the pleadings is no longer available, the trial court may permit late filings of a statutory motion under section 438. (§ 438, subd. (e); Sutherland v. City of Fort Bragg (2000) 86 Cal.App.4th 13, 25, fn.4.)
Section 438, subdivision (e) provides, “No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.”
Second, and most importantly, “ ‘[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he [or she] had no notice of the motion or that the notice was insufficient or defective.’ [Citations.]” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288; Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 342-343; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) “Courts applying the waiver rule generally have concluded that the party’s appearance at the hearing and opposition on the merits showed that the notice ‘served its purpose,’ despite any defect. [Citations.]” (Arambula v. Union Carbide Corp., supra, 128 Cal.App.4th at p. 343.)
In the present case, the record reflects that Kuo filed her notice of motion for judgment on the pleadings and supporting documents on March 13, 2007, and appellants filed their opposition to the motion on March 16, 2007. In addition to objecting that the motion for judgment on the pleadings was untimely filed within 30 days of trial under section 438, appellants’ opposition included argument on the merits. Appellants’ counsel also appeared to oppose the motion on the merits and object to the timeliness of the motion at the March 16, 2007 hearing. The trial court rejected appellants’ timeliness argument and exercised its discretion under section 438 to grant leave to file a late motion.
Accordingly, we find that appellants’ appearance at the hearing on the motion for judgment on the pleadings and filing of opposition on the merits constituted a waiver of any claim of procedural defects in the motion or the notice of motion. Although appellants objected to the late filing of the motion in their opposition below, on appeal they fail to make any showing that a procedural defect in the motion caused them to suffer any prejudice. Even assuming that appellants did not waive their claim, a showing that prejudice resulted from the procedural defect is required to establish reversible error. (See Reedy v. Bussell, supra, 148 Cal.App.4th at p. 1289.)
The trial court’s order of March 19, 2007, granting Kuo’s motion for judgment on the pleadings also included the court’s order denying appellants’ motion for leave to amend the complaint. Appellants make the general argument that it is an abuse of discretion to deny leave to amend the complaint if there is a reasonable possibility that the defective pleading may be cured by amendment. Respondents argue that appellants’ argument on appeal is insufficient. We agree.
The standard of review for an order denying leave to amend is abuse of discretion. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) Therefore, “there is a presumption in favor of the actions of the trial court to the effect that its discretion was properly exercised, and the burden and responsibility is on the appellant to affirmatively establish an abuse of that discretion.” (Mesler v. Bragg Management Co., supra, 219 Cal.App.3d at p. 991.) We find that appellants did not meet their burden with respect to their claim that the trial court abused its discretion when it denied their request for leave to amend the complaint. As respondents note, appellants do not specify any proposed amendment to the complaint or otherwise explain how the complaint could have been amended to defeat the motion for judgment on the pleadings. Appellants’ contention is therefore inadequate to satisfy their burden on appeal. As we have previously emphasized, the “ ‘appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority.’ ” (Gunn v. Mariners Church, Inc., supra, 167 Cal.App.4th at p. 218.) We therefore conclude that the trial court did not abuse its discretion in denying appellants’ request for leave to amend the complaint.
IV. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
WE CONCUR: RUSHING, P.J., ELIA, J.
Subdivision (b) of section 594 provides in part that “The notice to the adverse party required by subdivision (a) shall be served by mail on all the parties by the clerk of the court not less than 20 days prior to the date set for trial.”