Jewelry Theatre Building v. Yeo CA2/7 ( 2023 )

Filed 1/19/23 Jewelry Theatre Building v. Yeo CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JEWELRY THEATRE B317980
BUILDING, LLC,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No.
20STCV00885)
v.
SANG MIN YEO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gregory Keosian, Judge. Affirmed.
Sang Min Yeo, in pro. per., for Defendant and Appellant.
Hemar, Rousso & Heald and Paul N. Andonian for Plaintiff
and Respondent.
________________________
Jewelry Theatre Building, LLC (JTB) sued Sang Min Yeo
for unpaid rent due under two commercial leases between the
parties. Following a bench trial on November 23, 2021 the court
entered judgment in favor of JTB for $30,945.75. Yeo,
representing himself as he did in the trial court, appeals the
judgment, contending the trial court failed to rule on his defense
of retaliatory eviction, he was prejudiced by the failure of a
defense witness to appear pursuant to subpoena, and the
evidence did not support the award of damages either because
there was no unpaid rent or JTB did not adequately prove
mitigation.
The record designated by Yeo for appeal, even as
augmented by JTB, contains no court orders other than the
posttrial order entering judgment and the judgment itself and
omits most other significant documents, including JTB’s
complaint and Yeo’s answer. In addition, Yeo elected not to
provide a reporter’s transcript or other record of the oral
proceedings at trial. It is impossible for us on this sparse record
to evaluate the issues Yeo presents in his opening brief.1 (Yeo did
not file a reply brief.) Making all presumptions in favor of the
validity of the judgment, as we must (see, e.g., Kinney v. Superior
1 We acknowledge a self-represented litigant’s understanding
of the rules on appeal are, as a practical matter, more limited
than an experienced appellate attorney’s. Whenever possible we
do not strictly apply technical requirements in a manner that
deprives litigants of a hearing. However, when, as here, a total
lack of compliance with the fundamental rules of appellate
practice precludes meaningful review of the trial court’s decision,
we cannot ignore a self-represented litigant’s violation of the
rules of appellate procedure. (See Rappleyea v. Campbell (1994)
8 Cal.4th 975, 984-985.)
2
Court (2022) 77 Cal.App.5th 168, 177 [“‘“[a] judgment or order of
a lower court is presumed to be correct on appeal, and all
intendments and presumptions are indulged in favor of its
correctness”’”]), we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Two Leases, JTB’s Lawsuit and the Judgment
Yeo leased a store in JTB’s building at 655 South Hill
Street in downtown Los Angeles’s jewelry district for a five-year
term, from January 1, 2015 through December 31, 2019. Yeo
subsequently leased office space in the same building for
two years, from March 1, 2016 through February 28, 2018.
JTB alleged Yeo made his last rent payment for the office
space covered by the second lease on May 10, 2017 and
voluntarily vacated the premises on September 13, 2017. JTB
also alleged Yeo’s last payment on the store lease was made on
June 5, 2019 and Yeo voluntarily vacated those premises on
July 16, 2019. In addition, JTB claimed Yeo owed it several
thousand dollars for repairs needed as a result of Yeo’s damage to
the store’s thermostat, air conditioning, locks and security gate.
Yeo, on the other hand, asserted he was wrongfully evicted from
the office on October 25, 2017 and from the store on August 1,
2019.
JTB sued Yeo for damages on January 8, 2020. Following a
half-day bench trial on November 23, 2021, the court directed
entry of judgment in favor of JTB and against Yeo for $30,945.75.
No statement of decision was requested. The judgment was
entered December 7, 2021. Yeo filed a timely notice of appeal.
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2. Yeo’s Claims of Harassment and Retaliation; JTB’s
Claims of Damage to the Premises
In a document filed in the trial court titled “Defendant
Sang Min Yeo’s Supplemental Declaration for TRIAL BRIEF and
EXHIBITS,”2 Yeo asserted that on August 29, 2016 JTB
knowingly interfered with his business by removing and
damaging a signboard outside the building advertising his store.
Yeo reported the incident to the police, as reflected in an
investigative report prepared by Los Angeles Police Officer
Castillo, attached to Yeo’s declaration. Yeo also attached a letter
from JTB, dated August 26, 2016, which stated Officer Castillo
had on August 25, 2016 asked Yeo to remove the sign because it
was in violation of city codes and had advised JTB that Yeo could
be cited and fined if the signage remained in front of his store.
Yeo averred the contents of the letter had been fabricated by
JTB.
In his declaration Yeo said JTB demanded he cancel the
police report and thereafter harassed and threatened him, forcing
him to move out. Yeo’s supplemental trial brief also attached a
copy of a three-day notice to quit, dated August 25, 2017,
identifying various breaches of the store lease (but not Yeo’s
failure to pay rent); a copy of pages from JTB’s rental payment
journal; and a text exchange that Yeo contended demonstrated
JTB’s failure to properly mitigate its claimed damages.
2 This document was filed November 24, 2021, the day after
the bench trial. The record on appeal does not disclose whether it
had been provided to the court during trial the prior afternoon.
Yeo filed an initial trial brief on October 29, 2021. That
document was not included in the record on appeal.
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For its part, in its trial brief JTB explained that Yeo’s sign
on the sidewalk outside the building violated the terms of his
lease. Yeo was repeatedly advised of the violation but failed to
remove the sign. On August 24, 2016 JTB told Yeo it would
remove the sign if he did not do it himself. Several days later
JTB removed the sign, which was damaged in the process. Yeo
reported the damage to the police as vandalism, but JTB
contends there was no evidence it was aware any police report
had been made.
JTB’s trial brief detailed Yeo’s damage to the thermostat
and air conditioning in the store and Yeo’s interference with
JTB’s efforts to inspect and repair them, as well as damage to the
gate and locks securing the store, which was discovered after Yeo
moved out. The trial brief insisted Yeo had voluntarily
abandoned both leased sites in the building, explained how JTB
calculated the damages it was claiming in the lawsuit and
described its efforts to mitigate damages, including leasing the
office space to an existing tenant in the building at a discounted
rate.
3. Yeo’s Designation of the Record on Appeal and JTB’s
Motion To Augment
In his Notice Designating Record on Appeal, Yeo requested
a clerk’s transcript that contained only his notice of appeal, his
notice designating the record, the judgment, his supplemental
declaration in support of his trial brief and the subpoena (with
proof of service) served on Officer Castillo.3 Yeo checked the box
3 The subpoena included in the clerk’s transcript was filed in
superior court on November 1, 2021, directed Officer Castillo’s
appearance on November 9, 2021—a trial date that was
subsequently continued—and included a handwritten notation by
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on the form stating he chose to proceed without a record of the
oral proceedings at trial or any hearing, acknowledging he
understood “that without a record of the oral proceedings in the
superior court, the Court of Appeal will not be able to consider
what was said during those proceedings in deciding whether an
error was made in the superior court proceedings.”
JTB subsequently moved to augment the record, arguing
Yeo’s record designation was “prejudicially incomplete and
improperly self-serving in that it includes no documents filed by
Respondent in the underlying civil action.” We granted JTB’s
motion, which was unopposed, augmenting the record with JTB’s
trial brief, its exhibit list, a motion in limine (seeking to preclude
Yeo from introducing evidence or witnesses not identified in
discovery responses or any affirmative defenses not identified in
his answer) and Yeo’s opposition to that motion, and the trial
court’s posttrial minute order filed December 7, 2021 directing
entry of judgment.
DISCUSSION
Yeo’s opening brief argues the trial court failed to
adjudicate his contention he had been wrongfully terminated in
retaliation for reporting JTB’s vandalism to the police and the
court should have admitted the testimony or a statement from
Officer Castillo, who would have denied he told JTB that Yeo’s
signboard was illegal. He also contends he paid all rent due prior
to being wrongfully removed from the building and the court
failed to properly consider JTB’s obligation to mitigate its
the subpoena control officer that Officer Castillo was injured on
duty and unable to go to court, indicating a possible return date
in late November or early December.
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damages by making reasonable efforts to rent the premises after
he left.
Yeo failed to carry his burden as appellant to provide an
adequate record that demonstrates reversible error. (Maria P. v.
Riles (1987) 43 Cal.3d 1281, 1295-1296 [to overcome presumption
on appeal that an appealed judgment or order is presumed
correct, appellant must provide an adequate record
demonstrating reversible error]; Ballard v. Uribe (1986)
41 Cal.3d 564, 574 [“[i]t is well settled, of course, that a party
challenging a judgment has the burden of proving reversible
error by an adequate record”]; Randall v. Mousseau (2016)
2 Cal.App.5th 929, 935 [same].) We simply do not know what
happened at trial (or in any pretrial motion practice). For
example, the record does not disclose whether the trial court
ruled on JTB’s motion in limine to limit the evidence Yeo could
present at trial. Nor can we tell whether Yeo testified at trial; if
so, what he said; or whether he attempted to have any of the
documents attached to his supplemental declaration admitted
into evidence. Similarly, what, if anything, was discussed with
the court concerning Officer Castillo’s unavailability (or why he
had any relevant testimony to present) is not before us.
As for the adequacy of JTB’s case-in-chief, although we
have a copy of JTB’s exhibit list and the documents it proposed to
introduce, we do not know which of them was admitted into
evidence (with or without objection by Yeo) or whether JTB
introduced the testimony of any witnesses to explain its damage
calculations or the efforts it made to mitigate the damages
claimed.
As discussed, no statement of decision was requested in
this case, and none was prepared. “[I]n the absence of a
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statement of decision, an appellate court will presume that the
trial court made all factual findings necessary to support the
judgment for which substantial evidence exists in the record. In
other words, the necessary findings of ultimate facts will be
implied and the only issue on appeal is whether the implied
findings are supported by substantial evidence.” (Shaw v. County
of Santa Cruz (2008) 170 Cal.App.4th 229, 267; see Front Line
Motor Cars v. Webb (2019) 35 Cal.App.5th 153, 161 [“[i]n the
absence of a statement of decision, ‘all intendments favor the
ruling below [citation], and we must assume that the trial court
made whatever findings are necessary to sustain the
judgment’”].)
Here, because there is no record of the oral proceedings at
trial and nothing else in the record on appeal to indicate what
evidence was before the trial court, Yeo has forfeited any claim
the findings necessary for the judgment in favor of JTB are not
supported by substantial evidence. (See People ex rel. Harris v.
Shine (2017) 16 Cal.App.5th 524, 533 [absence of a reporter’s
transcript generally prevents review of a substantial evidence
argument]; Fernandes v. Singh (2017) 16 Cal.App.5th 932, 941
[appellant could not challenge a finding by the trial court for lack
of substantial evidence because there was “no reporter’s
transcript of the trial”]; Estate of Fain (1999) 75 Cal.App.4th 973,
992 [“[w]here no reporter’s transcript has been provided and no
error is apparent on the face of the existing appellate record, the
judgment must be conclusively presumed correct as to all
evidentiary matters”]; see generally Jameson v. Desta (2018)
5 Cal.5th 594, 609 [“‘“if the record is inadequate for meaningful
review, the appellant defaults and the decision of the trial court
should be affirmed”’”]; Randall v. Mousseau, supra, 2 Cal.App.5th
8at p. 935 [“Failure to provide an adequate record on an issue
requires that the issue be resolved against appellant. [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”].)
DISPOSITION
The judgment is affirmed. JTB is to recover its costs on
appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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