Kavalis v. Blanchard CA2/2 ( 2021 )

Filed 1/27/21 Kavalis v. Blanchard CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
PAULA KAVALIS, B299253
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SC127690)
v.
MICHELE BLANCHARD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark A. Young, Judge. Affirmed.
Law Office of Motaz M. Gerges and Motaz M. Gerges, for
Defendant and Appellant.
Bennett Kerns for Plaintiff and Respondent.
Michele Blanchard (landlord) appeals from a judgment
after a bench trial lasting less than 3 hours concerning a dispute
over a residential lease. Paula Kavalis (tenant) had signed a one-
year lease but vacated the property after six months. Tenant
sued landlord for a return of her security deposit or an itemized
statement of deductions from the security deposit. Following the
bench trial, the court awarded tenant the amount of her security
deposit ($11,200) plus attorney fees and interest. Landlord
appeals.
BACKGROUND1
At trial, tenant presented evidence that she entered into a
one-year lease with landlord; paid an $11,200 security deposit;
paid six months of rent ($33,000) upfront; and vacated the
premises in September 2016, six months after the lease
commenced. Tenant never received her security deposit back, nor
did she receive an itemized statement of deductions from the
security deposit. Tenant filed suit to obtain a refund of her
security deposit plus double damages pursuant to Civil Code
section 1950.5. Landlord filed a cross-complaint for breach of
lease and damage to the property.
On January 22, 2018, tenant filed a motion to compel
responses to special interrogatories and for sanctions after
landlord failed to respond to tenant’s discovery request. On
February 20, 2018, the trial court granted the motion and
1 There is no reporter’s transcript of the trial, nor is there
any clerk’s transcript other than the superior court case
summary, two superior court minute orders, appellant’s notice of
appeal and designation of record on appeal. All background facts
are taken from the superior court’s minute orders, dated April 17,
2019 and June 7, 2019.
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ordered responses from landlord by March 5, 2018. The court
also awarded monetary sanctions. Landlord failed to provide any
responses, and as a result, tenant filed a motion for terminating
sanctions on March 16, 2018. The hearing on tenant’s motion for
terminating sanctions was held on April 17, 2018. At the
hearing, tenant informed the court that landlord had served
responses on tenant the previous evening, which was six months
after they were due. The court reserved its ruling on the motion
pending tenant’s review of the responses.
On May 4, 2018, the court denied tenant’s motion for
terminating sanctions but imposed an evidentiary sanction.
Pursuant to the evidentiary sanction, landlord was precluded
from “‘offering any evidence at trial that would have been
responsive to the subject interrogatories, but which evidence was
not produced.’” The interrogatories requested, among other
things, all facts in support of landlord’s various affirmative
defenses, and all facts in support of the allegations in landlord’s
cross-complaint. In the responses that landlord provided on the
eve of the hearing, all questions were answered in the same way,
which the court summarized as follows: “(1) [tenant] did not pay
the full term of her lease; (2) [tenant] left prematurely, and
breached her lease contract; (3) [tenant] left the keys at the front
desk; and (4) [tenant] caused damages to the property.” Landlord
failed to state any facts with respect to her attempts to re-lease
the property, the eventual re-lease of the property, or any specific
damage caused by tenant.
At trial, due to the evidentiary sanction, the trial court was
forced to disregard landlord’s testimony that she mailed tenant
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an accounting on October 10, 2016.2 It was also forced to
disregard landlord’s testimony regarding her efforts to re-lease
the property and her repairs to the property.
The court found in favor of tenant and awarded her
$11,200, along with attorney fees not to exceed $1,000. Upon
review of tenant’s objections to the order, the court later awarded
tenant $2,800 in interest as set forth in tenant’s objections.
On July 18, 2019, landlord filed her notice of appeal.
DISCUSSION
I. The record is insufficient
Landlord has failed to provide a reporter’s transcript, a
complete clerk’s transcript or appendix, a settled statement or an
agreed statement. The only documents available to this court are
the superior court’s case summary, a minute order dated April
17, 2019, a minute order dated June 7, 2019, appellant’s notice of
appeal, and appellant’s notice designating record on appeal.
The absence of a sufficient record is fatal to landlord’s
appeal. “Appealed judgments and orders are presumed correct,
and error must be affirmatively shown. [Citation].” (Randall v.
Mousseau (2016) 2 Cal.App.5th 929, 935.) The appellant has the
burden of providing an adequate record. (Ibid.) “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.” (Ibid.)
Landlord appears to argue that the evidence does not
support the judgment against her, as tenant was the one who
2 For various reasons, the court also found this testimony not
credible.
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breached the contract. “Where 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.” (In re Estate of Fain (1999)
75 Cal.App.4th 973, 992.) Thus, appellant is precluded from
raising an argument regarding sufficiency of the evidence. (Ibid.)
Therefore, we presume, as we must, that the unreported trial
testimony would demonstrate the absence of error. The trial
court’s finding that tenant was owed her security deposit, plus
attorney fees and interest, is therefore affirmed.
II. Sanctions order
Landlord also attempts to challenge the sanctions order,
arguing that the outcome was a manifest injustice and that she
was denied a fair hearing. Landlord argues that the court erred
on the “special interrogatories ruling,” giving “evidentiary
preclusion on [sic] entire gambit, to include any evidence at trial
which would have been responsive to special interrogatories.”
However, landlord fails to cite any pertinent legal authority on
the issue of evidentiary sanctions or include any reasoned
argument. Landlord asserts, without citation, that “[t]o deny
evidence of any form is an abuse of discretion and an error by the
underlying court.” However, Code of Civil Procedure section
2023.030, subdivision (c) permits a court to impose an evidence
sanction “by an order prohibiting any party engaging in the
misuse of the discovery process from introducing designated
matters in evidence.”
Landlord argues that the court should have permitted her
to enter documents into evidence at trial, since the
interrogatories at issue did not seek documents. Landlord fails to
provide a record citation showing that she asked the trial court to
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consider any such documents. Landlord cites no authority for the
proposition that documents containing the same evidence
precluded in evidentiary sanctions should be admitted at trial,
nor does she raise or address the issue of hearsay.
A party may not rest on the bare assertion of error but
“‘“must present argument and legal authority on each point
raised.”’” (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th
270, 277.) “‘We are not obliged to make other arguments for
[appellant] [citation], nor are we obliged to speculate about which
issues [a party intends] to raise.’” (Ibid.) In the absence of “
‘cogent argument supported by legal analysis and citation to the
record,’” we treat any challenge to the sanctions as waived.
(Ibid.)
DISPOSITION
The judgment is affirmed. Tenant (respondent) is awarded
her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
HOFFSTADT
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