Turner v. Gordy CA2/2 ( 2021 )

Filed 4/28/21 Turner v. Gordy 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
RENITA TURNER, B296756
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC641502)
v.
ORDER MODIFYING
PAUL T. GORDY, OPINION
Defendant and Appellant. NO CHANGE IN
JUDGMENT
THE COURT:*
IT IS HEREBY ORDERED that the opinion filed herein on
April 21, 2021, be modified as follows:
On page 9, after the Disposition, replace the name of
Presiding Justice Lui with the name of Acting Presiding Justice
Ashmann-Gerst, so that the signature lines appear as follows:
________________________, J.
CHAVEZ
We concur:
________________________, Acting P. J.
ASHMANN-GERST
________________________, J.
HOFFSTADT
There is no change in judgment.
*
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
2
Filed 4/21/21 Turner v. Gordy CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
RENITA TURNER, B296756
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC641502)
v.
PAUL T. GORDY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Yvette M. Palazuelos, Judge. Affirmed.
Paul T. Gordy, in pro. per.; Chandler Law Firm and
Paul W. Chandler for Defendant and Appellant.
Renita Turner, in pro. per., for Plaintiff and Respondent.
******
Defendant and appellant Paul T. Gordy (defendant)
appeals from the judgment awarding plaintiff and respondent
Renita Turner (plaintiff) $226,784 in compensatory damages and
$170,000 in punitive damages following a court trial in this
action for breach of contract, fraud, and other claims. We affirm
the judgment.
BACKGROUND
Plaintiff filed this action against defendant and Alfonso
Bustamante (Bustamante)1 in November 2016. In her operative
first amended complaint, plaintiff alleged that defendant and
Bustamante induced her to enter into a series of fraudulent
investment transactions in which she gave defendant a total of
$172,482 in exchange for a promise that she would receive a 20
percent rate of return on her investment. Defendant gave
plaintiff a series of postdated checks as payment for the promised
return on her investment. In October 2014, the postdated checks
defendant provided failed to clear because of insufficient funds.
Defendant assured plaintiff that the problem was a banking issue
and that her initial investment would be returned.
Plaintiff’s initial investment remained unreimbursed in
September 2015, and she demanded a meeting with defendant.
During the meeting, defendant promised to return to plaintiff
$56,784 in fees she had paid him for the investment transactions.
Plaintiff met again with defendant in July 2016, and defendant
promised to pay plaintiff at least $20,000 within two weeks and
assured her he would repay her in full.
1 Bustamante is not a party to this appeal.
2
Plaintiff’s funds were never returned. She sued defendant
and Bustamante for breach of oral contract, promissory fraud,
intentional fraud, breach of fiduciary duty, conversion, unjust
enrichment, and constructive trust.
Defendant filed his answer to the first amended complaint
on October 5, 2017. He filed a case management statement on
November 17, 2017 indicating he was self-represented and
requesting a nonjury trial.
Defendant, plaintiff, and Bustamante were present at the
December 5, 2017 case management conference hearing at which
the trial court set a final status conference for October 11, 2018,
and a trial date of October 22, 2018. The trial was bifurcated into
liability and punitive damages phases. All parties were self-
represented through the liability phase of the trial.
Defendant and Bustamante failed to appear at the
October 11, 2018 final status conference. The trial court set an
October 22, 2018 order to show cause re sanctions against
defendants for their failure to appear. The trial court’s October
11, 2018 minute order states that because no jury deposit fee was
posted, the matter would be tried as a court trial.
Defendant and Bustamante appeared on October 22, 2018,
and the trial court discharged the order to show cause and
vacated its sanctions order. The matter was then called for trial.
Plaintiff, defendant, and Bustamante testified, and the trial court
admitted plaintiff’s documentary evidence, including photocopies
of checks paid to defendant or his corporation and e-mail
exchanges between plaintiff and defendant. After hearing
argument from the parties, the trial court took the matter under
submission. No court reporter was present to record the
proceedings, and neither party requested a settled statement.
3
On October 25, 2018, the trial court issued an interlocutory
judgment in favor of plaintiff and against defendant and
Bustamante, jointly and severally, in the amount of $170,000,
plus prejudgment interest at the rate of 10 percent, on the
promissory fraud and intentional fraud causes of action; against
defendant only in the amount of $170,000 plus prejudgment
interest at the rate of 10 percent on the breach of contract and
breach of fiduciary duty causes of action; and $56,784 plus
prejudgment interest at the rate of 10 percent against defendant
only on the unjust enrichment cause of action. The trial court
found that defendant acted with malice, oppression, and fraud
and set a date of December 10, 2018 for the trial on punitive
damages. On December 10, 2018, the trial court granted
defendant’s oral motion to continue the trial to January 25, 2019.
Defendant was represented by counsel at the January 25,
2019 trial on punitive damages. Defendant’s counsel initially
made an oral request to continue the trial but subsequently
withdrew that request and stated that he was ready to proceed.
During the trial court’s examination, defendant testified
that he earned $4,000 per month for a two-and-a-half-year period
ending in October 2014 and $6,000 per month from mid-2015 to
November 2017.
Defendant further testified that in 2017 he owned real
property in the City of Yorba Linda valued at $876,000. There
was evidence that defendant transferred the property to his wife
in 2017, and that an entity controlled by defendant subsequently
purchased the property for approximately $800,000. Defendant
testified that the property was valued at $1.3 million in 2018 and
encumbered by an $876,000 loan. In July 2018, defendant sold
4
the property to a third party for $38,000 in cash plus assumption
of the existing loan.
Plaintiff presented evidence of bank accounts held by
defendant or entities controlled by him but advised the trial court
that defendant had failed to produce bank statements or records
for many of those accounts. Defendant and his counsel admitted
that they did not provide plaintiff with all of the banking records.
At the conclusion of the trial, the trial court took the matter
under submission.
On January 29, 2019, the trial court entered a final
judgment in favor of plaintiff awarding her $170,000 in punitive
damages. The final judgment included the trial court’s previous
finding that defendant had acted with malice, oppression, and
fraud. The final judgment also included the court’s previous
damages award of $170,000, plus 10 percent prejudgment
interest, against defendant and Bustamante, jointly and
severally, on the promissory fraud and intentional fraud causes of
action and against defendant only on the breach of contract and
breach of fiduciary duty causes of action; and $56,784, plus 10
percent prejudgment interest, against defendant only on the
unjust enrichment cause of action.
Defendant filed a substitution of attorney on April 2, 2019
indicating he was once again self-represented. On July 24, 2019,
the trial court denied defendant’s ex parte application for an
order shortening time on a motion to set aside and vacate the
judgment under Code of Civil Procedure section 473 on the
grounds of defendant’s mistake, inadvertence, surprise, or
5
excusable neglect. Defendant’s motion to vacate the judgment
was heard and denied on October 4, 2019.2
This appeal followed.
DISCUSSION
Defendant claims his health issues, including diabetes and
complications following amputation of his foot several months
before the October 2018 trial, disabled him mentally and
physically and impaired his ability to prepare the case for trial.
Defendant further claims he requested a continuance of the
October 22, 2018 trial date, and the trial court’s denial of that
request denied him due process and violated his civil rights, the
Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et
seq.) (ADA), and rule 1.100 of the California Rules of Court.3
Defendant challenges the punitive damages award on the
grounds that it is excessive and unsupported by the evidence.
I. Trial continuance
“A motion for continuance is addressed to the sound
discretion of the trial court.” (Oliveros v. County of Los Angeles
(2004) 120 Cal.App.4th 1389, 1395.) We will uphold the trial
court’s discretion “‘if it is based on a reasoned judgment and
complies with legal principles and policies appropriate to the case
before the court.’’’ (Thurman v. Bayshore Transit Management,
Inc. (2012) 203 Cal.App.4th 1112, 1126, disapproved on another
ground by ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 196,
fn. 8.)
2 Defendant’s motion was continued twice, first on the trial
court’s own motion, and then by stipulation of the parties.
3 California Rules of Court, rule 1.100 governs requests for
accommodations by persons with disabilities.
6
On appeal, we presume the judgment to be correct and
indulge all inferences and presumptions to support it regarding
matters as to which the record is silent. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564 (Denham).) An appellant bears
the burden of overcoming the presumption of correctness by
providing an adequate record that affirmatively demonstrates
error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140–1141.)
When a trial date is set, the date is considered firm and
continuances are disfavored. (Cal. Rules of Court, rule 3.1332(a),
(c).) A party seeking a continuance must make the request for a
continuance by a noticed motion or an ex parte application with
supporting declarations. (Rule 3.1332(b).) A continuance may be
granted only upon a showing of good cause. (Rule 3.1332(c).)
The record contains no motion, ex parte application, or oral
request by defendant to continue the October 22, 2018 trial date
and no order denying any oral or written request for a
continuance. The record also contains no oral or written request
by defendant for an accommodation under the ADA or rule 1.100
of the California Rules of Court and no order denying any such
request. Where, as here, the proceedings regarding defendant’s
purported request for a continuance were unreported, we do not
presume that the trial court denied any request for continuance
on any improper basis. We instead presume that the trial court
based its decision on a proper assessment of the facts. (Denham,
supra, 2 Cal.3d at p. 564.)
Defendant’s claim that he had no notice of the October 22,
2018 trial date is unsupported by the record. Rather, the record
shows that defendant was present at the December 5, 2017 case
management conference at which the trial court set the
October 22, 2018 trial date.
7
Defendant fails to establish any abuse of discretion.
II. Punitive damages
Defendant forfeited his appellate challenge to the amount
of the punitive damages award by failing to file a motion for a
new trial in the trial court below. The amount of a punitive
damage award must be challenged in the trial court by way of a
new trial motion, and the failure to do so precludes appellate
review. (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908,
918–919 (Schroeder) [defendant could not contend for the first
time on appeal that compensatory and punitive damages were
unsupported by substantial evidence and were excessive]; Bate v.
Jolin (1929) 206 Cal. 504, 508 [“[t]he point that damages are
excessive cannot be raised for the first time on appeal, but must
be presented to the lower court on the motion for a new trial”];
Campbell v. McClure (1986) 182 Cal.App.3d 806, 807–808, 811–
812 [that the record did not reflect any evidence of appellant’s
wealth could not be considered absent a new trial motion].) This
rule applies whether the case was tried by a jury or, as here, by
the court. (Glendale Fed. Sav. & Loan Assn. v. Marina View
Heights Dev. Co. (1977) 66 Cal.App.3d 101, 122 [court trial]; see
Bate v. Jolin, at p. 508 [court trial].)
Defendant’s motion to vacate the judgment under Code of
Civil Procedure section 473 on the grounds of surprise, excusable
neglect, or mistake did not preserve his appellate challenge to the
amount of the punitive damages award. His failure to file a new
trial motion resulted in the forfeiture of his claim that punitive
damages were excessive or unsupported by the evidence.
(Schroeder, supra, 11 Cal.3d at pp. 918-919.)
8
DISPOSITION
The judgment is affirmed. Plaintiff shall recover her costs
on appeal.
________________________, J.
CHAVEZ
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
9