Law Offices of Monica R. Molina and Monica R. Molina for Plaintiff and Respondent. Jerome Orlemann, in pro. per., for Defendant and Appellant. Kyle Orlemann, in pro. per., for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19TRCV00291, Ramona G. See, Judge. Affirmed.
Law Offices of Monica R. Molina and Monica R. Molina for Plaintiff and Respondent.
Jerome Orlemann, in pro. per., for Defendant and Appellant.
Kyle Orlemann, in pro. per., for Defendant and Appellant.
Jerome and Kyle Orlemann (the Orlemanns) appeal a judgment against them in an unlawful detainer action. They contend the court made numerous procedural, legal, and factual errors in connection with the trial. The Orlemanns have not affirmatively demonstrated the court erred based on the record before us. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 25, 2019, plaintiff Kevin Chiasson, as trustee of the Michael D. Stone Trust (the Trust), filed an unlawful detainer complaint against the Orlemanns. The complaint alleged the Orlemanns had an oral agreement with Chiasson's predecessor in interest to rent property owned by the Trust (the Property). The Orlemanns stopped paying rent in July 2018, yet remained in possession of the Property. Chiasson sought possession of the Property and unpaid rent of more than $27, 000.
The Orlemanns failed to respond to the complaint. The trial court entered a default judgment against them, which they moved to set aside. The court granted the motion as to Kyleon July 31, 2019, but denied the motion without prejudice as to Jerome. Jerome filed another motion for relief from default judgment, which the court granted on August 20, 2019.
For clarity, we refer to the Orlemanns individually by their first names. We intend no disrespect.
The same day the court granted Jerome's motion, it called the matter for trial. The parties announced ready, and the Orlemanns represented themselves at a bench trial later that afternoon. The record on appeal does not contain a reporter's transcript of the trial or a statement summarizing it. Nor does it include any evidence introduced at trial. A minute order indicates Chiasson made an oral motion in limine to exclude all evidence of title to the Property.
The basis for the motion in limine is not apparent from the record.
The court issued a "Ruling On Trial" in a minute order dated August 26, 2019. Based on the ruling, it appears the Orlemanns' primary defense was that they are the true owners of the Property based on an oral agreement with the former trustee, Michael Stone, to sell it to them. The Orlemanns purportedly formed the agreement with Stone because they could not obtain a loan to purchase the Property on their own.
The ruling states Chiasson moved to exclude evidence supporting the Orlemanns' defense under the doctrines of res judicata and collateral estoppel. Specifically, Chiasson argued the ownership issue was litigated in connection with a 2016 complaint the Orlemanns filed against Stone. The court concluded res judicata and collateral estoppel did not apply because the prior action did not result in a decision on the merits.
Nonetheless, the court rejected the Orlemanns' ownership defense, explaining that any oral agreement to purchase the property from Michael Stone would be barred by the statute of frauds. The court further noted such an agreement would constitute fraud on the seller and mortgage loan company in violation of federal law.
The court also rejected the Orlemanns' alternative defense that Chiasson's claims were barred by the statute of frauds due to the absence of a written lease. The court explained that, if there is no written lease, a tenancy at will is created, and it is terminable at the will of either party.
On the merits of Chiasson's claims, the court found he demonstrated the Trust owns the Property, as evidenced by a deed of trust and mortgage loan agreement. The court further found the Trust had a month-to-month lease with the Orlemanns, and Chiasson followed all the requirements to pursue the unlawful detainer action. Based on these findings, the court ruled in favor of Chiasson and awarded him $43, 712.54 for unpaid rent and holdover damages.
The court entered judgment for Chiasson, and the Orlemanns timely appealed.
1. Principles of Appellate Review
While we are mindful the Orlemanns are representing themselves on appeal, they are "to be treated like any other party and [are] entitled to the same, but no greater consideration than other litigants and attorneys." (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Thus, they are bound by the most fundamental rule of appellate review that "judgments and orders are presumed correct, and error must be affirmatively shown. [Citation.] Consequently, appellant[s] [have] the burden of providing an adequate record. [Citations.] Failure to provide an adequate record on an issue requires that the issue be resolved against appellant[s]. [Citation.] Without a record, either by transcript or settled statement, a reviewing court must make all presumptions in favor of the validity of the judgment." (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935.)
2. The Orlemanns' Request for Judicial Notice
The Orlemanns filed a motion requesting we take judicial notice of a 2016 complaint they filed against Michael Stone, as well as several real estate records related to the Property, including a deed of trust, assignment of deed of trust, trustee's deed upon sale, and grant deed. The appellate record shows the trial court properly took judicial notice of the 2016 complaint and considered it when reaching its decision. (Evid. Code, § 452, subd. (d) [a court may take judicial notice of court records].) Accordingly, we must also take judicial notice of it. (Evid. Code, § 459; Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1 [a reviewing court is required to take judicial notice of each matter properly noticed by the trial court].)
There is nothing in the record, however, indicating the parties presented the property records to the trial court.A" '[reviewing] court will not normally take judicial notice of matters which were not brought to the attention of the trial court . . . .'" (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1450; see Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325 [a reviewing court is not required to take judicial notice of matters not before the trial court].) The Orlemanns urge us to make an exception to this general rule because, among other things, they are indigent, had little time to prepare for trial, represented themselves, and did not have the opportunity to conduct meaningful discovery. We decline the Orlemanns' invitation and deny their motion to take judicial notice of the property records.
The Orlemanns claim the trial court refused to take judicial notice of the documents. They do not, however, support that claim with citations to the record. Further, they implicitly concede in their reply brief that the records were not before the trial court.
In their reply brief, the Orlemanns urge us to consider the documents under Code of Civil Procedure section 909, which permits reviewing courts to "take additional evidence" and "make factual determinations contrary to or in addition to those made by the trial court." The Orlemanns' request is untimely. (See Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 ["Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant."]; Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583 ["[P]oints raised for the first time in a reply brief on appeal will not be considered."].) In any event, this case does not present the sort of exceptional circumstances warranting our exercise of such authority. (See Tyrone v. Kelley (1973) 9 Cal.3d 1, 13 [a reviewing court's authority to make findings of fact should be exercised sparingly and only under exceptional circumstances].)
3. The Orlemanns Waived Their Right to a Jury Trial
The Orlemanns contend the trial court erred by conducting a bench trial, rather than a jury trial. A defendant in an unlawful detainer action has the right to a jury trial, and may waive that right only in specific ways set out in the Code of Civil Procedure. (Code Civ. Proc., §§ 631, subd. (a), 1171; Chen v. Lin (2019) 42 Cal.App.5th Supp. 12, 16-17.) Those ways include failing to announce that a jury is required or failing to deposit the requisite jury fees. (Code Civ. Proc., § 631, subd. (f).)
There is nothing in the record indicating the Orlemanns announced that a jury was required, or that they deposited the requisite jury fees. Absent such a showing, we must presume they waived their right to a jury trial. (See People v. $17, 522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1079 [a party's failure to request a jury trial or post the requisite fees constituted a waiver of her right to a jury trial]; Denham, supra, 2 Cal.3d at p. 564 ["[a]ll intendments and presumptions are indulged to support [a judgment] on matters as to which the record is silent"].)
The Orlemanns contend Chiasson has the burden on appeal to show they knowingly and intelligently waived their right to a jury trial. Not so. On appeal, the judgment is presumed correct, and the appellant has the affirmative duty to show error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham); Osgood v. Landon (2005) 127 Cal.App.4th 425, 435 (Osgood).)
4. The Orlemanns Have Not Shown the Court Refused to Allow Them to Testify and Introduce Evidence at Trial
The Orlemanns contend that, instead of convening a trial, the court simply converted Chiasson's motion in limine into a motion for summary judgment, which it then granted. There is nothing in the record to support this assertion; the court's minute order indicates it conducted a trial at which the parties presented testimony and other evidence.
The Orlemanns alternatively insist the trial court refused to allow them to testify or offer any evidence in their defense at trial. Because the Orlemanns failed to provide a reporter's transcript or statement summarizing the trial, we cannot meaningfully evaluate their contention. As such, they have not met their burden to show error. (See Osgood, supra, 127 Cal.App.4th at p. 435 ["It is the appellant's affirmative duty to show error by an adequate record."].)
5. The Orlemanns Have Not Shown The Court Erroneously Rejected Their Ownership Defense
The Orlemanns contend the trial court erred by finding the statute of frauds barred their ownership defense. They maintain their specific defense was that they owned the Property by virtue of a resulting trust created through their arrangement with Michael Stone. According to the Orlemanns, the trial court rejected this defense in its "Ruling on Trial" when it concluded "any contention that the unlawful detainer action is not meritorious based on the existence of an oral agreement to sell real property is unavailing [due to the statute of frauds] . . . ." The Orlemanns insist the court's reasoning is erroneous because a resulting trust is not subject to the statute of frauds. (See Jones v. Gore (1956) 141 Cal.App.2d 667, 673 ["where a resulting trust exists the statute of frauds has no application"].)
A resulting trust "arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest." (Lloyds Bank California v. Wells Fargo Bank (1986) 187 Cal.App.3d 1038, 1042.)
Initially, we cannot confirm on the record before us that the Orlemanns raised the resulting trust issue at trial. The court's ruling suggests the Orlemanns argued they owned the Property pursuant to an oral agreement with Michael Stone to sell it to them. If so, the Orlemanns' ownership defense was based on a contract, rather than a resulting trust.
Nevertheless, the purported error does not provide grounds for reversal. The judgment indicates no party requested a statement of decision, and there is nothing in the record to suggest the court intended its "Ruling on Trial" to be one. The ruling, therefore, is merely a tentative decision, which may not be used to impeach the judgment. (Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, 551-552 [where no party requested a statement of decision, the court's "written opinion and ruling was not a statement of decision but merely a tentative decision"]; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268 (Shaw) [a tentative decision cannot be used to impeach a judgment on appeal].) As a result, to the extent the court erroneously applied the statute of frauds in its ruling, we must presume it corrected the error before entering the final judgment. (Shaw, at p. 268.) Moreover, under the doctrine of implied findings, we must also presume the court made the necessary factual findings to reject the Orlemanns' resulting trust defense. (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140 [where the parties did not request a statement of decision, the reviewing court "must assume that the trial court made whatever findings are necessary to sustain the judgment"].)
6. The Orlemanns Have Not Shown Chiasson Lacked Standing
The Orlemanns argue Chiasson lacked standing to recover unpaid rent for an eight-month period when a bank, rather than the Trust, owned the Property. In support, they rely entirely on property records contained in their request for judicial notice, which we have already denied. As discussed above, the appellate record does not show the Orlemanns attempted to introduce the documents into evidence or requested the trial court take judicial notice of them. Nor have the Orlemanns provided a compelling reason for their failure to do so. We refuse to consider the documents for the first time on appeal, which is fatal to the Orlemanns' standing argument.
In a related argument, the Orlemanns contend the trial court erred in its ruling by relying on a deed of trust and mortgage loan agreement to find the Trust owned the Property. They argue the deed and agreement are irrelevant and inadmissible to show ownership because they are hearsay, are improper secondary evidence, and lack foundation.
The Orlemanns' argument fails for multiple reasons. First, it is premised on statements in the court's tentative decision, which cannot be used to impeach the judgment. (Shaw, supra, 170 Cal.App.4th at p. 268.) Second, the record does not show the Orlemanns raised these objections at trial, which forfeits them on appeal. (Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611.) Finally, the evidence does not appear in the appellate record, making it impossible for us to evaluate its relevance and admissibility.
7. The Orlemanns Have Not Shown The Court Erred in Finding an Oral Rental Agreement
The Orlemanns challenge the sufficiency of the evidence supporting the trial court's finding that they had an oral rental agreement with Michael Stone. Specifically, they argue Chiasson could not prove the existence of the oral agreement absent testimony from his predecessors in interest, who did not appear at trial. The Orlemanns, however, overlook that Chiasson could prove the agreement through other means, such as testimony from the Orlemanns themselves. Given the lack of a reporter's transcript or statement summarizing trial, we must presume he did precisely that. (See Denham, supra, 2 Cal.3d at p. 564; Estate of Fain (1999) 75 Cal.App.4th 973, 992 ["an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence"].)
The parties agree that Chiasson did not offer testimony from his predecessors.
The Orlemanns make numerous other arguments in passing, including that Chiasson failed to provide proper notice of the rent due, the trial court failed to consider all their affirmative defenses, and the trial court violated their constitutional rights by conducting a bench trial the same day Jerome filed his answer. The Orlemanns forfeited these arguments by raising them for the first time in their reply brief, failing to support them with cogent analysis, or failing to provide citations to relevant legal authority and the record. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived."]; Nordstrom Com. Cases, supra, 186 Cal.App.4th at p. 583.)
We affirm the judgment. Kevin Chiasson, as trustee of the Michael D. Stone Trust, is to recover his costs on appeal.
We concur: EDMON, P. J., HILL, J. [*]
[*] Judge of the Santa Barbara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.