Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 153276, 161805
SCOTLAND, P. J.
Plaintiffs Lewis and Mary Westlake challenge the judgment in favor of defendants Henry and Dolly Willms, and various other defendants, in plaintiffs’ action for forcible detainer, forcible entry, conversion, and elder abuse (Super. Ct. No. 153276; Ct.App. No. C058379); and plaintiff Lewis Westlake challenges the judgment in favor of defendant Henry Willms and Sugar Maple Holdings, LLC, in Westlake’s subsequent action for forcible detainer (Super. Ct. No. 161805; Ct.App. No. C059434). We consolidated the appeals. For ease of reference, we will refer to the plaintiffs in both actions as “Westlake” and to the defendants in both actions as “Willms.”
In appeal No. C058379, Westlake contends the trial court erred (1) by refusing to automatically stay the action due to pending appeals; (2) by refusing to grant a continuance; (3) by dismissing the action with prejudice; (4) by ruling certain causes of action were barred by collateral estoppel; and (5) by awarding attorney fees. In appeal No. C059434, Westlake claims the trial court wrongly held the action was barred on the ground of collateral estoppel and thus erred in sustaining Willms’s demurrer without leave to amend. For the reasons that follow, we shall affirm the judgments.
FACTS
Due to the convoluted procedural posture of these cases and the fact that they were both disposed of on procedural grounds, it is necessary to resort to the parties’ pleadings and to this court’s unpublished opinion in a prior appeal arising from the same underlying facts (Willms v. Westlake (July 1, 2008, C056127) [nonpub. opn.]) in order to provide the requisite factual context.
According to Willms, Westlake filed for chapter 11 bankruptcy after defaulting on a loan from Willms, which was secured by a deed of trust encumbering property known as the Dry Creek Ranch. Willms purchased the property in a trustee’s sale in 2001. The order authorizing the sale states that machinery and equipment located on the property had been claimed by Westlake as exempt assets and that Westlake “shall make arrangements directly with [Willms] for the removal of the equipment and machinery.”
Willms leased the property to Westlake for grazing land from November 2001 through November 2002. After the lease expired, Willms leased the property to a third party and did not receive any further lease monies from Westlake. In March 2003, Willms gave Westlake a “Notice of Right to Reclaim Abandoned Property” by April 30, 2003; but Westlake did not remove any farm equipment and machinery from the ranch in response to the notice. Thus, Willms made arrangements to have the abandoned equipment and machinery removed.
Because Westlake interfered with the removal of the equipment and continually trespassed on the property, Willms filed a petition seeking a civil harassment injunction. (Code Civ. Proc., § 527.6; further section references are to the Code of Civil Procedure unless otherwise specified.) He sought an order that Westlake be directed to stay away from the Dry Creek Ranch property (Super. Ct. No. 151870).
The trial court issued the injunction order on July 8, 2004, and Westlake appealed.
In December 2004, prior to the resolution of the injunction appeal, Westlake filed suit against Willms. By the time Westlake had filed his sixth amended complaint in December 2005, he alleged causes of action for forcible detainer, forcible entry, conversion, and elder abuse. (Super. Ct. No. 153276.) His complaint alleges that, from 2001 to 2004, Westlake was in lawful possession of Dry Creek Ranch; that he stored farm equipment there; and that in March 2004, Willms unlawfully entered the property and converted the farm equipment and machinery.
In his initial complaint, Westlake acknowledged that Willms had purchased the Dry Creek Ranch property in a trustee’s sale in 2001 and that Westlake was leasing the Dry Creek Ranch property from Willms to store equipment and other personal property. He attached a copy of what he referred to as a “lease agreement” with Willms, which was for a term of one year expiring on November 1, 2002. The “lease agreement” appears to be a contract granting Westlake, as broker, the right to solicit and negotiate for the lease of the property until November 1, 2002.
Westlake’s second amended complaint omitted the written agreement and any reference to a lease.
In his sixth and final amended complaint, Westlake asserted that Willms retained him as a broker to lease the property and, in lieu of leasing the property to a third party, Westlake leased the property as an oral lessee. According to Westlake, the lease renewed annually at the termination of the lease period because the property was agricultural; in March 2004, Willms and others unlawfully took possession of the real property and effectively ousted him in spite of the existing lease agreement; and Willms and the other defendants then converted Westlake’s personal property, which had been stored on the land.
Willms filed a cross-complaint for fraud, suppression of fact, constructive fraud, negligence, and declaratory relief.
On August 1, 2006, the court ruled on bifurcated issues, finding that (1) Willms’s entitlement to possession of the property had been determined in Willms’s civil harassment case in which the judge necessarily found Willms was entitled to exclusive possession of the ranch, and thus (2) Westlake was collaterally estopped from litigating the causes of action for forcible entry and forcible detainer, and from litigating in the remaining causes of action the issue of possession of the property.
Westlake appealed that ruling, but on December 20, 2007, this court dismissed the appeal as having been taken from a nonappealable order. (Westlake v. Willms (Dec. 20, 2007, C057552) [app. dism. by order].)
On July 1, 2008, this court dismissed as moot Westlake’s appeal from the civil injunction because the term of the injunction had expired. (Willms v. Westlake (July 1, 2008, C056127) [nonpub. opn.].) Westlake argued that the appeal was not moot because there might be a recurrence of the legal controversy between the parties. He claimed that the legal effect of the injunction continued to haunt him in his forcible detainer action in light of the trial court’s ruling on bifurcated issues, which determined that Westlake’s right to possession of Dry Creek Ranch had been decided adversely to him in the injunction action. However, this court concluded the argument against mootness failed because the question of who possessed Dry Creek Ranch could not have been determined in the injunction proceeding. This was so because the special proceedings authorized by section 527.6 did not invest the court with authority to resolve real property disputes. (Citing Byers v. Cathcart (1997) 57 Cal.App.4th 805, 810-811.) Accordingly, the statute could not be used as a substitute for the statutory remedies of unlawful detainer and eviction. Although the trial court could restrict Westlake’s harassing conduct via an injunction, it could not determine Westlake’s right to legal possession of the property. Thus, the appeal from the injunction was moot.
Meanwhile, Westlake’s complaint filed in 2004 (Super. Ct. No. 153276) was proceeding slowly. Following multiple demurrers to Westlake’s multiple amended complaints, the scheduled trial dates were continued on several occasions. Westlake, who had initially litigated the action in pro per, was successively represented by four different attorneys. He unsuccessfully requested a stay of proceedings based on his appeals from the injunction judgment and from the ruling on bifurcated issues.
On December 4, 2007, the last scheduled trial date, Westlake sought to discharge his fourth attorney, Mr. Omstead, based upon an alleged conflict of interest. He also asked for a continuance to obtain new counsel.
The trial court considered that the case had previously been continued on several occasions, observed that three or four days had been set aside for trial, and stated that it was time to get the case resolved. The court indicated that Westlake could either continue being represented by Omstead, or Westlake would have to proceed to trial in pro per.
Westlake claimed that he was not qualified to represent himself and had “been on a lot of drugs” and had “serious high blood pressure and carotid arteries that [he] just found out about within the last week.” As for continuing to be represented by Omstead, Westlake said that counsel had been cooperative but could not be effective because of the short time he had been on the case.
The trial court replied that it had known Omstead for some time and Omstead would not have substituted in as counsel, with knowledge of the scheduled trial date, if he did not think that he could be prepared. The court explained that it had “tried to bend over backwards to give [Westlake his] day in court on numerous occasions. But we just can’t simply tie up the whole court system because of problems, real or imaginary, that you have.” Accordingly, the court ruled that Westlake would have to choose between proceeding with Omstead or proceeding in pro per, but there would be no continuance.
Westlake discharged Omstead but declined to proceed with trial in pro per because he was unprepared. The trial court then stated: “Well, if you aren’t ready to go, I’m going to have to dismiss this with prejudice which means you can’t re-file it.” Willms’s counsel also moved to dismiss the action with prejudice and dismiss Willms’s counterclaim without prejudice. The court did so.
Thereafter, the court awarded costs and attorney fees to Willms.
On November 16, 2007, less than one month before superior court case No. 153276 was dismissed with prejudice, Westlake filed another lawsuit for forcible detainer against Willms, alleging that Westlake was entitled to possession of the property as of June 29, 2007, after the civil injunction expired, and that Willms continued to hold possession without lawful basis. (Super. Ct. No. 161805.)
On March 6, 2008, Willms demurred on the grounds the complaint failed to state facts sufficient to constitute a cause of action, and it was barred by collateral estoppel. Willms asked the trial court to take judicial notice of its records in Westlake’s prior action (Super. Ct. No. 153276) and Willms’s prior action for an injunction (Super. Ct. No. 151870).
Sustaining the demurrer, the court observed that the right to possession is the determinative issue in a forcible detainer action, and Westlake could not establish a right to possession, or a right to possession exclusive of defendants. This was so because the file in superior court case No. 153276, of which the court took judicial notice, disclosed the court had twice decided that Westlake was not entitled to possession of the property. The issue was fully litigated in Westlake’s prior action, wherein the court issued an order ruling on bifurcated issues finding that Westlake was collaterally estopped from relitigating his right to possession of the property. Because the issue was fully litigated and decided adversely to Westlake in superior court case No. 153276, collateral estoppel precluded him from relitigating the issue again in the present action. Hence, the court sustained the demurrer without leave to amend and entered a judgment of dismissal.
Westlake appealed from the judgments in both actions.
DISCUSSION
I
Because Westlake’s appellate brief and his conduct at trial display a lack of familiarity with applicable procedural rules, it is helpful to set forth some of the rules prior to addressing his contentions on appeal.
A judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.) Thus, an appellant has the burden to affirmatively demonstrate reversible error. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; In re Marriage of Gray, supra, 103 Cal.App.4th at pp. 977-978.)
The appellant’s burden includes (1) presenting each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made; (2) providing an adequate record that affirmatively demonstrates error; (3) supporting all appellate arguments with legal analysis and appropriate citations to the material facts in the record; and (4) showing exactly how the error caused a miscarriage of justice. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) If the appellant fails to comply with any of these rules, the contentions are forfeited. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295; City of Lincoln v. Barringer, supra, 102 Cal.App.4th at pp. 1239-1240; In re Marriage of McLaughlin, supra, 82 Cal.App.4th at p. 337; Hernandez v. California Hospital Medical Center, supra, 78 Cal.App.4th at p. 502; Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785; Opdyk v. California Horse Racing Bd., supra, 34 Cal.App.4th at pp. 1830-1831, fn. 4.)
Lack of legal counsel does not entitle an appellant to special treatment (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290); a pro se litigant is held to the same restrictive rules of procedure as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) “A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)
At times, Westlake proceeded in propria persona at trial, but he is represented by counsel on appeal.
With these rules in mind, we turn to Westlake’s appellate contentions.
II
Westlake contends that the trial court erred in refusing to stay his first superior court action (Super. Ct. No. 153276).
On the day trial was scheduled to begin, Westlake moved to stay the action on the ground that appeals were pending from the judgment in Willms’s civil harassment action and from the trial court’s ruling on bifurcated issues in Westlake’s action. In Westlake’s view, the perfecting of an appeal automatically stays proceedings in the trial court and, thus, the court lacked jurisdiction to proceed with trial. (§ 916, subd. (a).)
“Subject to certain exceptions not relevant here, ‘the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.’ (§ 916, subd. (a).) The purpose of the automatic stay provision of section 916, subdivision (a) ‘is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ [Citation.] [¶]... ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ [Citation.] ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ [Citation.]” Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189, fn. omitted.) “Further trial court proceedings in contravention of the section 916 stay are in excess of the court’s jurisdiction,...” (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.)
Westlake fails to establish that his action against Willms (Super. Ct. No. 153276) was automatically stayed by his appeal from the judgment in Willms’s civil injunction action against Westlake (Super. Ct. No. 151870). Westlake’s action was not a further proceeding in the trial court on the civil harassment injunction or on matters embraced therein that would have any effect on the effectiveness of the appeal. It did not seek to enforce, vacate, or modify the injunction judgment. Indeed, the injunction expired in June 2007, several months prior to Westlake’s motion to stay trial proceedings.
As for Westlake’s appeal from the ruling on bifurcated issues, it fails for the same reason and because only a perfected appeal stays proceedings in the trial court. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 360; § 916, subd. (a).) The existence of an appealable judgment or order is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) Because he appealed from a nonappealable order, he was not entitled to a stay of proceedings in the trial court.
III
Westlake claims the trial court erred in denying his motion for a continuance based on his desire to obtain legal representation, and in requiring him to proceed in pro per despite the fact he was 68 years of age and in poor health. He says he had a constitutional right to be represented by counsel, particularly one who was free from a conflict of interest. The claim of error is not persuasive.
In civil cases, continuances are disfavored, the assigned trial dates are firm, and parties and their counsel must regard the trial date as certain. (Cal. Rules of Court, rule 3.1332(a) & (c); further rule references are to the California Rules of Court.) A party seeking a continuance must make the request by a noticed motion or an ex parte application, with supporting declarations, as soon as reasonably practical once the need for the continuance is discovered. (Rule 3.1332(b).) The trial court “may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Rule 3.1332(c).) The unavailability of a party or of trial counsel because of death, illness, or other excusable circumstances, may indicate good cause for a continuance. (Rule 3.1332(c)(2) & (3).)
In ruling on a motion for continuance, the trial court must consider all relevant facts and circumstances, including whether previous continuances were granted; the availability of alternative means to address the problem that gave rise to the motion for a continuance; prejudice that parties or witnesses will suffer as a result of a continuance; and whether the interests of justice are best served by a continuance. (Rule 3.1332(d).)
The decision whether to grant a continuance is within the trial court’s sound discretion and will not be disturbed on appeal unless the decision is arbitrary, capricious, or patently absurd and results in a miscarriage of justice. (Jensen v. Superior Court (2008) 160 Cal.App.4th 266, 271; In re Karla C. (2003) 113 Cal.App.4th 166, 180.) In evaluating the propriety of the trial court’s ruling, we consider the information the parties provided to the court prior to the ruling. (Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, 761.)
In support of his claim that the trial court abused its discretion, Westlake relies on Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389 (hereafter Oliveros) and Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242 (hereafter Hernandez), which are distinguishable. In both of those cases, the parties had attorneys of record who indisputably were unable to appear at trial and sought a continuance as soon as practicable. (Oliveros, supra, 120 Cal.App.4th at pp. 1392-1393 [scheduling conflict of counsel of which he could not have known earlier than the week before trial]; Hernandez, supra, 115 Cal.App.4th at p. 1245 [the attorney became terminally ill and died shortly before trial, and the plaintiff required spinal surgery during time set for trial].) In addition, in Hernandez, the trial was scheduled for a date on which neither the new attorney nor the plaintiff would be able to attend, such that the plaintiff would not be able to present his case unless the trial was continued. (Hernandez, supra, 115 Cal.App.4th at p. 1245.) In Oliveros, the defendants, who because of their attorney’s unavailability were unrepresented through no fault of their own, did not present any evidence at all, which resulted in a directed verdict against them in excess of $12 million. (Oliveros, supra, 120 Cal.App.4th at p. 1394.) Lastly, in both cases the trial courts completely failed to balance the competing interests of judicial efficiency and of deciding cases on their merits. (Oliveros, supra, 120 Cal.App.4th at p. 1395; Hernandez, supra, 115 Cal.App.4th at p. 1248.)
In contrast, Westlake chose to discharge counsel, his fourth, on the date scheduled for trial based on an alleged conflict of interest that is not substantiated by any admissible evidence in the appellate record. He made a belated oral motion for a continuance because he did not want to represent himself, but he failed to establish why he did not attempt to obtain new counsel prior to the scheduled trial date.
Civil litigants have the right to appear by counsel retained at their own expense (Kim v. Orellana (1983) 145 Cal.App.3d 1024, 1027), but this does not excuse a litigant, who has substituted into the case in propria persona, from following appropriate rules and procedures in seeking a continuance to obtain counsel. (Nelson v. Gaunt, supra, 125 Cal.App.3d at pp. 638-639; Agnew v. Parks (1963) 219 Cal.App.2d 696, 701-702.) If the litigant is not diligent in making sure that counsel is available for trial, it is not an abuse of discretion to deny a continuance, even where it results in the deprivation of legal representation. (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 13, p. 41.)
Westlake also did not substantiate his claim that his health was too infirm for him to represent himself at trial. “The denial of a motion for continuance for absence of a party may constitute an abuse of discretion by the trial court sufficient to justify reversal only where there is an affirmative showing of ‘good cause,’ such as serious illness or unforeseen circumstances which prevented a party from appearing at trial.” (Young v. Redman (1976) 55 Cal.App.3d 827, 831.) No such showing was made in the present case.
An appellant must affirmatively show error by an adequate record on appeal; in the absence of such a record, we will not disturb the trial court’s implied finding that Westlake failed to show good cause for the continuance on the morning of trial. (In re Marriage of Teegarden (1986) 181 Cal.App.3d 401, 406; see People v. Leeper (1953) 117 Cal.App.2d 462, 466 [the “record discloses a situation where the granting or denial of appellant’s various requests for continuance were within the discretion of the court and no abuse of that discretion appears in the record”].)
IV
Without conceding the propriety of dismissing the action, Westlake contends the trial court erred in dismissing the action with prejudice rather than without prejudice. He notes that the court did not specify the legal authority for dismissing the action but, if it was section 581, subdivision (b)(5), then the court could only dismiss the action without prejudice. If the court dismissed the matter for delay in prosecution (§ 583.410), he argues the ruling is infirm because there was no compliance with the mandatory notice requirements. (Rule 3.1340.)
Section 581, subdivision (b)(5) provides: “An action may be dismissed in any of the following instances: [¶]... [¶] (5) By the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal.”
Section 583.410 states: “(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case. [¶] (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.”
Rule 3.1340 states in part: “(a) Discretionary dismissal two years after filing [¶] The court on its own motion or on motion of the defendant may dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant. [¶] (b) Notice of court's intention to dismiss [¶] If the court intends to dismiss an action on its own motion, the clerk must set a hearing on the dismissal and mail notice to all parties at least 20 days before the hearing date.”
Willms responds that the trial court had authority to dismiss the action under its inherent authority to control the proceedings, and also pursuant to section 581, subdivision (d), which authorizes dismissal with prejudice on the court’s own motion “upon the trial and before the final submission of the case” if the plaintiff abandons the complaint or any cause of action. We agree.
Section 581 states in relevant part: “(d) Except as otherwise provided in subdivision (e), the court shall dismiss the complaint, or any cause of action asserted in it, in its entirety or as to any defendant, with prejudice, when upon the trial and before the final submission of the case, the plaintiff abandons it. [¶] (e) After the actual commencement of trial, the court shall dismiss the complaint, or any causes of action asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiff requests a dismissal, unless all affected parties to the trial consent to dismissal without prejudice or by order of the court dismissing the same without prejudice on a showing of good cause.”
“[A]bandonment may be based on any conduct on the part of the plaintiff that prevents the successful prosecution of the action.” (1A Cal.Jur.3d (2006) Actions, § 407, p. 510.) Examples of such conduct are the refusal to call necessary witnesses (Stewart v. Stewart (1909) 156 Cal. 651, 655-656) and the persistent refusal to proceed as ordered by the court (Larsson v. Cedars of Lebanon Hospital (1950) 97 Cal.App.2d 704, 707-708).
However, Kaufman & Broad Bldg. Co. v. City & Suburban Mortg. Co. (1970) 10 Cal.App.3d 206, 212-213 (hereafter Kaufman & Broad) indicates there are no implied abandonments; the plaintiff must voluntarily and expressly abandon its case or cause of action. In Kaufman & Broad, the appellate court found that section 581, subdivision (4) (now subdivision (d)) had been improperly applied to dismiss a cause of action where statements made by the plaintiff regarding his intentions to proceed were ambiguous. In chambers, plaintiff had indicated to the trial court that he “might” wish to abandon this cause of action at a future time, but “he qualified his statements repeatedly by reservation and equivocation.” (Ibid.) During the trial, considerable evidence was introduced on the cause of action. In reviewing the proceedings, Kaufman & Broad noted: “Upon motion for a new trial the court as well as counsel found themselves unable to clearly remember what was said in the court’s chambers and more importantly they forgot exactly what was decided there.” (Id. at p. 214.) As the record did not clearly indicate the plaintiff had made an election not to proceed, reversal was required because “[s]uch intent must be demonstrated to the court by way of a motion to dismiss, stipulation of the parties or some other form of express intent on the record.” (Id. at p. 213.)
Kaufman & Broad is distinguishable. Here, Westlake clearly indicated that he was not prepared and could not proceed to trial. His statements were not ambiguous and are plainly reflected in the record. The trial court did not abuse its discretion in construing this as an abandonment of the action.
Westlake contends section 581, subdivision (d) does not apply because trial never actually commenced. He observes that section 581 states trial commences at the beginning of the opening statement or, if there is no opening statement, upon the administration of the oath or affirmation of the first witness, or the introduction of any evidence. (§ 581, subd. (a)(6).) His contention is unavailing.
The statutory definition of when trial commences is applicable to other portions of the statute, which limit the court’s authority to dismiss an action to situations occurring “prior to the actual commencement of trial” (§ 581, subd. (c)) or “[a]fter the actual commencement of trial” (§ 581, subd. (e)). Subdivision (d) does not state that the court has authority to dismiss the action when the plaintiff abandons the action after the commencement of trial; it states the court can do so “upon the trial and before the final submission of the case.”
“[W]hen a statute uses a particular term in one part and omits it in another, the omission typically signifies that the Legislature intended a different meaning. [Citations.]” (Friends of Westhaven & Trinidad v. County of Humboldt (2003) 107 Cal.App.4th 878, 884.) In other words, “upon the trial” does not mean “after the actual commencement of trial.”
Westlake abandoned the action “upon the trial” by appearing and failing to proceed as directed on the day scheduled for trial.
In any event, regardless of the applicability of section 581, subdivision (d), dismissal was appropriate under the trial court’s inherent authority to control the litigation, which is not limited by the dismissal statutes. Indeed, section 581, subdivision (m) states: “The provisions of this section shall not be deemed to be an exclusive enumeration of the court’s power to dismiss an action or dismiss a complaint as to a defendant.” And section 583.150 states that the chapter “does not limit or affect the authority of a court to dismiss an action or impose other sanctions under a rule adopted by the court pursuant to Section 575.1 or by the Judicial Council pursuant to statute or otherwise under inherent authority of the court.”
Thus, independent of specific statutory grounds for dismissal, under certain circumstances a trial court possesses an underlying inherent discretionary power to dismiss actions and claims with prejudice in order to enforce its orders and control the proceedings before it. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 [“courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them”]; Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758-759; 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 282, pp. 735-737.)
For example, a court may dismiss an action as an exercise of its inherent power where an unreasonable, inexcusable delay in prosecution interferes with the orderly process of litigation and may make a fair trial unlikely, or when the plaintiff violates court procedures or orders and no lesser sanction would be effective to cure the harm or the court’s authority cannot possibly be otherwise vindicated. (Stephen Slesinger, Inc. v. Walt Disney Co., supra, 155 Cal.App.4th at pp. 758-760.) “Trial courts should only exercise this authority in extreme situations, such as when the conduct was clear and deliberate, where no lesser alternatives would remedy the situation [citation], the fault lies with the client and not the attorney [citation], and when the court issues a directive that the party fails to obey. [Citation.]” (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799.)
Here, three years after the complaint was filed, and after many continuances and numerous changes of counsel, Westlake sought to delay the proceedings yet again on the day set for the trial to commence. He wanted to discharge his attorney, Mr. Omstead; did not have substitute counsel ready to proceed with the trial; and sought to obtain a continuance because he was not prepared to proceed in pro per. The court explained it had “tried to bend over backwards to give [Westlake his] day in court on numerous occasions. But we just can’t simply tie up the whole court system because of problems, real or imaginary, that you have.” The court denied the continuance and advised Westlake he would have to choose between proceeding with trial that day in pro per or with Omstead. Westlake discharged Omstead but refused to proceed with trial. Under the circumstances, the court did not abuse its discretion in dismissing the action with prejudice in order to vindicate its authority and enforce its order denying a continuance.
Westlake argues the court should have allowed him to voluntarily dismiss the action without prejudice pursuant to subdivision (c) of section 581, given that the court dismissed Willms’s cross-complaint without prejudice. Westlake notes that, had the court permitted him to do so, he could have avoided the court’s imposition of an attorney fees award in favor of Willms. (Civ. Code, § 1717, subd. (b)(2).) However, Westlake did not move to dismiss his complaint without prejudice, and the court cannot be faulted for not granting a motion that was not tendered to the court.
Section 581, subdivision (c) states: “A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.”
For the reasons stated above, the trial court did not abuse its discretion in dismissing the action with prejudice.
V
Westlake contends the court erred in its ruling on bifurcated issues when it determined that he was collaterally estopped from litigating the forcible detainer and forcible entry causes of action because the issue of entitlement to possession had been adjudicated in Willms’s civil harassment injunction action. Westlake points out that this court’s later decision dismissing the civil harassment appeal held the question of who had the right to possess Dry Creek Ranch could not have been determined in the injunction proceeding because the special proceedings authorized by section 527.6 did not invest the court with authority to resolve real property disputes (citing Byers v. Cathcart, supra, 57 Cal.App.4th at pp. 810-811) and the statute could not be used as a substitute for the statutory remedies of unlawful detainer and eviction. Thus, Westlake argues the trial court erred in ruling that he was collaterally estopped from pursuing his forcible detainer and entry causes of action based on the injunction judgment.
Willms correctly counters that it is not enough for Westlake to show error, he must also demonstrate the error is prejudicial, which Westlake failed to do.
As stated in part I, ante, Westlake has the burden of showing not only error but prejudice, i.e., that the error has resulted in a miscarriage of justice. (In re Marriage of McLaughlin, supra, 82 Cal.App.4th at p. 337.) He must spell out in his brief exactly how the error caused a miscarriage of justice; it is not sufficient for him to point to the error and rest there. (Ibid.)
Westlake’s opening brief is devoid of any effort to establish the requisite prejudice. He attempts to rectify his omission in his reply brief; however, “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; see also Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10 [an argument raised for the first time in a reply brief without a showing of good cause may be deemed waived].)
Not only has Westlake forfeited his claim of error, he cannot demonstrate the requisite prejudice, given his failure to proceed to trial, which resulted in the dismissal of the action. The trial court’s erroneous collateral estoppel ruling did not result in the unfavorable judgment; Westlake’s conduct did. The action still would have been dismissed with prejudice due to his abandonment of his case on the day scheduled for trial. Consequently, Westlake cannot show that it is reasonably probable a more favorable result would have occurred absent the court’s collateral estoppel ruling. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; People v. Watson (1956) 46 Cal.2d 818, 836.)
VI
Turning to appeal No. C059434, Westlake says the trial judge erred in sustaining Willms’s demurrer on the ground of collateral estoppel in Westlake’s second forcible detainer action. Westlake reiterates his contention above that the trial judge erred in light of statements in this court’s opinion dismissing his appeal from the injunction judgment. He also argues that collateral estoppel does not apply because all of the requisite legal elements are not met.
Relying on Lucido v. Superior Court (1990) 51 Cal.3d 335 at page 341, Westlake argues that (1) the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding; (2) the issue must have been actually litigated in the former proceeding; (3) it must have been necessarily decided in the former proceeding; (4) the decision in the former proceeding must be final and on the merits; and (5) the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. According to Westlake, the first and fourth elements are missing; the same issue was not adjudicated because the 2004 civil harassment injunction did not determine the issue of the right to possession, and the injunction judgment was not a final determination on the merits because the injunction expired in 2007.
However, the trial judge was not simply relying on the judgment in Willms’s injunction action to find collateral estoppel applied, as did the court in Westlake’s first forcible detainer action. Rather, the judge determined that the issue of possession was fully litigated in Westlake’s prior forcible detainer action via the ruling on bifurcated issues, which determined that Westlake was collaterally estopped from relitigating his right to possession of the property in light of the judgment in Willms’s injunction action. Because the issue was fully litigated and decided adversely to Westlake in his first forcible detainer action, collateral estoppel precluded Westlake from relitigating the issue again in the present action.
Accordingly, whether collateral estoppel applies is based on a comparison between the issues adjudicated in the second forcible detainer action and the first one, not the second forcible detainer action and the injunction action. The same issue of possession was litigated in both forcible detainer actions. Following the ruling on bifurcated issues, which resolved the issue of possession adversely to Westlake in his first action, the trial judge entered a judgment of dismissal with prejudice. That the judge erroneously decided the issue of possession in the first action does not mean that the matter was not fully litigated or that the judgment was not final at the time Willms demurred to Westlake’s complaint in the second action. If the judge erred in the first action, Westlake’s recourse was to appeal from that judgment. He did but failed to show reversible error for the reasons expressed in part V, ante, of this opinion.
Westlake has not presented analysis or authority establishing that the court erred in determining that the judgment of dismissal in the first forcible detainer action barred him from relitigating the issues presented in the second action, due to the principles of collateral estoppel. (Johnson v. County of Fresno (2003) 111 Cal.App.4th 1087, 1095 [“dismissal with prejudice bars a subsequent action on the same claim between the parties and their privies. And a consequent judgment of dismissal is a final judgment on the merits, entitled to res judicata effect”].) Thus, Westlake has not met his appellate burden of establishing that the trial court erred in sustaining Willms’s demurrer without leave to amend.
VII
Returning to appeal No. C059434, Westlake challenges the trial court’s award of attorney fees. He contends that (1) the award of fees was not authorized, and (2) even if the award was authorized, the trial court erred in failing to apportion the fees.
A
Attorney fees, when authorized by contract, are an allowable item of costs to the prevailing party. (§§ 1032, subd. (b), 1033.5, subd. (a)(10)(A).) The written contract attached to Westlake’s initial complaint states: “If an action is initiated to enforce this agreement, the prevailing party shall receive reasonable attorney fees.” Nevertheless, Westlake argues the court erred in awarding Willms attorney fees.
In Westlake’s view, the action was not based on a contract with an attorney fee clause for the following reasons. Although his initial complaint alleged that the forcible detainer action was based on a “lease agreement,” the agreement gave Westlake only the right to find a lessee for Dry Creek Ranch. Westlake subsequently amended his complaint and alleged that he was retained as a broker to lease the property and that, instead of leasing the property to a third party, he leased the property himself as an oral lessee. Thus, Westlake claims, his action was based on an oral lease and not on a contract with an attorney fees clause.
However, in the trial court, Westlake did not oppose Willms’s motion for fees on this ground, even though Willms expressly relied on the attorney fee clause in the retainer agreement in support of his motion for such fees. It is too late for Westlake to raise this objection now. (Children’s Hospital & Medical Center v. Bonta΄ (2002) 97 Cal.App.4th 740, 776 [“‘An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below’”]; see also Robinson v. Grossman (1997) 57 Cal.App.4th 634, 648 [a party who failed to object in the trial court that the opposing party’s attorney fees were not sufficiently documented forfeited the right to object on appeal to the amount of the fee award].)
By not raising the issue in the trial court, Westlake forfeited his claim that an attorney fee award is not authorized by any contract.
B
Lastly, Westlake contends the trial court erred in failing to apportion the attorney fee award and to distinguish between Westlake’s fees incurred defending against contractual claims and fees incurred in defending against noncontractual claims. Thus, for example, he argues that the fee award included reimbursement for actions taken by Willms’s attorney on behalf of defendants who had no contractual privity with Westlake and could not be covered by the attorney fee clause; and that the award included attorney fees incurred in defending against noncontractual claims in the complaint.
Again, Westlake has forfeited his appellate contention. In his opening brief, he neglects to show that he raised this objection in the trial court in his opposition to Willms’s motion for attorney fees. (Robinson v. Grossman, supra, 57 Cal.App.4th at p. 648.) Furthermore, Westlake fails to point to any specific time entries in the records submitted by Willms’s attorney that Westlake believes should not have been reimbursed because they were for time expended litigating the noncontractual claims. He simply contends a review of the billings will reveal that Willms incurred several thousands of dollars in fees for such matters. This is not sufficient. It is Westlake’s responsibility to support claims of error with citation and authority; we are not obligated to perform that function on his behalf. (Estate of Hoffman (1963) 213 Cal.App.2d 635, 639; Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 199; see also Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113.)
Westlake attempts to rectify this oversight in his reply brief. Not only is it too late to do so (Garcia v. McCutchen, supra, 16 Cal.4th at p. 482, fn. 10; American Drug Stores, Inc. v. Stroh, supra, 10 Cal.App.4th at p. 1453), Westlake fails to point to the specific time records he says should not be included in the award. Without reviewing information submitted in connection with Willms’s motion for attorney fees, and without showing which portion of the attorney fees sought were not compensable, Westlake merely points to demurrers, motions to strike, and other activity at trial that he believes should not be covered by the attorney fee clause. This fails to meet his appellate burden of establishing error.
DISPOSITION
The judgments are affirmed. Having served its purpose, the stay issued on January 15, 2009, is vacated.
We concur: NICHOLSON, J., ROBIE, J.