Metropolitan News-Enterprise


Wednesday, November 29, 2017


Page 1


Court of Appeal:

Judge Meiers Unwarranted in Denying Settled Statement

Zelon Says Trial Court May Not Thwart Right of Appeal Through Such Refusal


By a MetNews Staff Writer


A judge was without justification in denying a timely motion that she prepare a settled statement, the Court of Appeal for this district declared yesterday, granting a writ of mandate directing that she prepare the statement.

The action comes in a quiet title action brought by Harolyn Rule. The default of defendants Signet Domain, LLC and Sam Nam was entered in December 2015.

Los Angeles Superior Court Judge Barbara Ann Meiers, on her own motion, set a hearing for July 27, 2016, “to dismiss for failure to state a cause of action and improper pleadings not in accordance with California law.”

The minute order from the hearing recites:

“Plaintiff is given an opportunity to amend her Complaint now that she has counsel. The Amended Complaint is to be filed by 8/29/16. The default Sam Nam is vacated.”

Judgment on Pleadings

On Aug. 22, 2016, Meiers denied a motion for reconsideration and granted judgment on the pleadings in favor of the defendant, pursuant to Code of Civil Procedure §438. She relied, in the alternative, on Code of Civil Procedure §436, which authorizes a court to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state.”

There was no court reporter at the hearings and the plaintiff sought a settled statement for use on appeal. Meiers declined to provide one.

The minute order of May 26, 2017, declares:

“Plaintiff’s motion to use a settled statement on appeal (which implicitly also includes a request to have such a statement ordered and prepared) is denied. As Plaintiff herself admits, the motion in issue was ruled upon based only on the papers before the Court and argument. No independent evidence was introduced at the hearing meaning none outside of whatever appeared in the papers before the Court. No testimony was taken. It is also impossible to attempt to reconstruct—even were it appropriate or necessary to do so—what was specifically said in oral argument, which, in all events, is generally not to exceed the points and especially facts pled in the papers before the Court. The ‘correctness’ of the Judge’s ruling is reviewed based on the papers before the trial court, no settled statement is necessary or required and Plaintiff’s motion is denied.”

Zelon’s Opinion

In yesterday’s opinion, Justice Laurie Zelon of Div. Seven said:

“In California, litigants who comply with relevant statutes and rules have a right to appeal an adverse judgment; the trial court may not arbitrarily deny a litigant that right. In this matter, the trial court refused a timely request by petitioner to preserve a record so that she might appeal. Because the trial court abused its discretion in doing so, we grant the petitioner’s request for a writ of mandate and order the preparation of a settled statement.”

She pointed out:

“In August 2016, almost a year before the trial court in this case determined that no record was necessary for this Court’s review, we published Randall v. Mousseau….In that case, we made clear that the discretion of the trial court to deny a request for a settled statement is limited….

Zelon, who wrote the opinion in that case, quoted herself as saying:

“When a proper motion is made, it is the obligation of the parties and the court to work together to prepare the settled statement. California law has long recognized this obligation: a trial court may not ‘deprive a litigant of his right of appeal by simply refusing to perform a plain duty.’ ”

Sixth District Opinion

The jurist also cited a 2016 Sixth District opinion in Mooney v. Superior which said that a trial judgemust provide reasons demonstrating a ‘justifiable excuse’ why a settled statement could not be produced using the established procedures.”

Zelon wrote:

“The trial court failed to provide a ‘justifiable excuse’ in this case. First, it undertook to decide what this Court would need to review the judgment; that determination, however, is not properly before the trial court. It is the litigant who must make a judgment whether he or she intends ‘to raise any issue that requires consideration of the oral proceedings in the superior court.’ (Rule 8.120(b).) If the litigant does not provide a record of the proceedings, the reviewing court may order the record augmented by oral proceedings to ‘prevent a miscarriage of justice.’ (Rule 8.130(a)(4).) This is not the trial court’s decision to make.

“The trial court’s second reason, that it would be difficult for it to reconstruct the hearing, also fails to provide a justifiable basis for its denial of the motion. Instead, it stands in the face of settled case law: a trial court’s stated difficulty in remembering what happened during the proceedings is not a ground to deny a settled statement.”

 Frederick R. Bennett, court counsel for the Superior Court, submitted a letter brief in defense of Meier’s action. He took the stance that no evidence was taken at the August 2016 hearing and that there was purely a legal ruling, which the appeals court would decide de novo, so that no statement of decision was needed.

Zelon disagreed. She said actions by the judge reflected the exercise of discretion, reviewable under the abuse of discretion standard, which necessitates an understanding of the reasons for the actions.

The justice explained:

“In this case, the trial court stated no reasons for its rulings in its minute orders. Moreover, all of the rulings were based on the trial court’s own motions and not on filings made with the court by real parties. The court took the extraordinary action of vacating an unchallenged default and dismissing the entire action without providing any explanation of the grounds for doing so. In these circumstances, the trial court’s denial of the request, if allowed to stand, would deprive this Court of the information necessary to rule on the merits of Rhue’s appeal.

“Here, as in Randall, the decision of the trial court to deny the request for a settled statement would be fatal to Rhue’s attempt to obtain review of the trial court’s decisions.”

The case is Rhue v. Superior Court, No. B283248.

Sarvenaz Bahar, chair of the Appellate Law Section of the Los Angeles County Bar Association, represented Rhue, who also appeared in pro per.

There was no appearance by the defendants.


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