Martin v. Chen CA6

Filed 11/18/20 Martin v. Chen CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

RUDY D. MARTIN, H046123
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 15CV285753)

v.

GUANG YUE CHEN, et al.

Defendants and Respondents.
Plaintiff and appellant Rudy D. Martin (Martin) failed to appear at the trial
scheduled on his causes of action against defendants and respondents Guang Yue Chen
and Mei Chen (referred to collectively as Chen), and Richard Newton (Newton). Upon
motion by each of these defendants, the trial court dismissed the case against each
defendant without prejudice, pursuant to Code of Civil Procedure section 581,
subdivision (b)(5).1 On appeal, Martin claims the trial court erred in dismissing the
action against these defendants. Finding no error on the trial court’s part, we affirm the
dismissal.
I. INTRODUCTION
Martin represents himself in this appeal, as he did at the trial court. As a party
representing himself, Martin “ ‘is entitled to the same, but no greater, consideration than
other litigants and attorneys.’ [Citations.] Accordingly, we may disregard factual

1
Subsequent statutory references are to the Code of Civil Procedure unless
otherwise noted.
contentions that are not supported by citations to the record [citation] or are based on
information that is outside the record [citation]. [Fn. omitted.] We may disregard legal
arguments that are not supported by citations to legal authority [citation] or are
conclusory [citation]. . . . [W]e will bear in mind that an ‘ “order of the lower court is
presumed correct.” ’ [Citation.] Therefore, [the appellant] has the burden of
affirmatively showing any error. [Citation.]” (Tanguilig v. Valdez (2019) 36
Cal.App.5th 514, 520, rehg. den. (June 18, 2019), review den. (Aug. 21, 2019)
(Tanguilig).)
The Judicial Ethics Committee of the California Judges Association has opined
that, “under the Code of Judicial Ethics, no reasonable question is raised about a judge’s
impartiality when the judge, in an exercise of discretion, makes procedural
accommodations that will provide to a diligent self-represented litigant acting in good
faith, the opportunity to have his or her case fairly heard. In other words, judges should
understand the difficulties encountered by self-represented litigants and that it is ethical
to exercise discretion to treat them differently. The judge may provide reasonable
accommodations, affording latitude, being lenient and solicitous, making allowances,
applying less stringent standards, and give self-represented litigants leeway and
consideration.” (Cal. Judges. Assn., Jud. Ethics Com., Opn. No. 76 (2018) at p. 1,
[as of
Nov. 17, 2020], archived at: .) The liberal construction
of pleadings is one reasonable accommodation the court can make. (Id. at p. 9.)
In his appellant’s opening brief, Martin sets forth three “questions presented,”
without providing any discussion or argument related to those questions. He provides a
statement of facts without citing to the record he designated—a 494-page Clerk’s
Transcript2; instead, he makes general references to three exhibits he attached to his

2
Martin incorrectly contends this appeal has been “coordinated to be considered
concurrently” with appeal number H044760, Martin v. J.P. Morgan Chase Bank. Based

2
appellant’s opening brief.3 Martin includes legal argument, with minimal citation to the
record or explanation of how the law he cites reveals any error by the trial court. We will
exercise our discretion to construe his brief liberally in an effort to determine the nature
of Martin’s complaints but decline to search the portions of record not cited by Martin in
his appellant’s opening brief to determine if they support his contentions on appeal. (See
Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) With this in mind, we
turn to the merits of Martin’s appeal.
II. FACTUAL AND PROCEDURAL BACKGROUND4
Martin alleges the underlying case “is an action for: Declaratory Relief, Injunctive
Relief, Quiet Title, Breach of Contract, Breach of Fiduciary Duty, Fraudulent
Conveyance, Fraudulent Inducement, Promise Without Intent to Perform, Embezzlement,

on his mistaken belief that the matters have been coordinated, Martin states, “judicial
notice is requested of both cases filed together.” He has not filed a formal request for
judicial notice. Even if we deemed the statement in his brief as such a request, he does
not discuss appeal number H044760 beyond this initial reference or explain why the
other case is relevant to this appeal. As a result, we will not review the record from
appeal number H044760 in deciding this case.
3
California Rules of Court, rule 8.204 allows a party filing a brief to attach
materials from the appellate record to the brief. While Exhibit 1 to Martin’s brief is not
part of the record, it is a minute order from the underlying civil action, of which we can
take judicial notice. Parts of Exhibit 2, related to a request for disability
accommodations, are part of the record on appeal. We will not consider those documents
included in Exhibit 2 that are not part of the record. (See Jozefowicz v. Allstate Ins. Co.
(2019) 35 Cal.App.5th 829, 837, fn. 4.) Nor will we consider Exhibit 3, also not part of
the record.
4
In reciting the background of this case, we refer only to those facts cited by
Martin that are supported by citations to the record. Thus, the background comes from
the two exhibits appropriately attached to his opening brief (see fn. 2, infra), as well as
the September 13, 2018 order dismissing the action without prejudice, which forms the
basis of this appeal. Martin also cites to a “November 1, 2017 docket entry,” purporting
to show that the trial court obstructed his ability to obtain representation by refusing his
attorney’s request for time to prepare for the trial. The “docket entry” is part of the
register of actions included in the clerk’s transcript, and contains no information about
the nature of any alleged request by Martin, or the trial court’s response to it.

3
Breach of Implied Covenant, Conversion, and Fraud/Deceit.” Martin did not designate
the operative complaint as part of the record on appeal.5 Based on the portion of the
record cited by Martin, it appears he named Chen and Newton as defendants.
On September 27, 2016, the trial court adopted a tentative ruling indicating it
could not rule on certain requests on the regular law and motion calendar without first
determining who had rightful title to two properties, a determination that would require
the court to make credibility findings. The court indicated it would expedite the trial in
the matter, setting it for December 2016. Pending trial, the court ordered that rental
payments on the property located on Cormorant Road would be placed into a blocked
account and used solely to pay the mortgage, taxes, insurance and maintenance on the
property.
Although the court set the case for trial in December 2016, for reasons that are not
apparent from the portion of the record cited by Martin in his opening brief, the trial did
not commence until August 13, 2018. On July 24, 2018, Martin submitted to the trial
court a “request for accommodations by persons with disabilities,” pursuant to California
Rules of Court, rule 1.100,6 which governs requests for accommodations by persons with
disabilities, as specified in Civil Code section 51, the Americans With Disabilities Act of
1990 (42 U.S.C. § 12101 et seq.) (the ADA), or other applicable laws.7 He requested a

5
Neither Chen nor Newton filed responsive briefs challenging any of the factual
allegations raised in Martin’s opening brief. The nature of the underlying complaint is
not at issue in this appeal. Thus, while we generally will only consider factual allegations
properly supported by citations to the record, we will accept Martin’s representation that
these are the causes of action alleged in the operative complaint.
6
Subsequent references to rules of court are to the California Rules of Court.
7
Pursuant to rule 1.100(c)(4), “The court must keep confidential all information of
the applicant concerning the request for accommodation, unless confidentiality is waived
in writing by the applicant or disclosure is required by law.” This rule applies when
rulings regarding requests are being reviewed. (Rule 1.100(g)(3).) However, “[w]hen a
party raises [his or] her physical condition as an issue in a case, [he or] she waives the
right to claim that the relevant medical records are privileged.” (Vesco v. Superior Court
(2013) 221 Cal.App.4th 275, 279.) Martin included one of his requests, the court’s

4
continuance of the trial until after September 2018, and then for a limit of four hours per
day of trial once the trial began; he also asked the court to keep discovery open to resolve
discovery disputes. Martin stated he made the requested accommodations “[s]ubsequent
to recent heart operation suffering severe Charcots feet disability & dizziness, blurred
vision and lightheadedness.” The trial court’s ADA coordinator responded the next day,
stating the trial court had previously denied Martin’s requested continuance; the
coordinator asked Martin to provide updated information regarding his current functional
limitations by August 3, 2018, for further consideration. One of Martin’s doctors
seemingly responded, in an undated letter addressed to the coordinator, indicating Martin
needed to be off his left foot at all times for 36 weeks, and had to minimize weight
bearing strain on his right foot to ensure he did not develop the same condition there.
The record Martin cites in his opening brief does not indicate the ultimate resolution of
his request for accommodations.
Martin commenced the instant appeal by filing a notice of appeal in the trial court
on August 13, 2018, indicating he wanted to appeal an order that “was sent via email to
plaintiff on August 10, 2018, as the court’s response to plaintiffs request made to the
court on July 23, 2018….” He contemporaneously filed a petition for writ of mandate
and request for immediate stay and relief from the order emailed to him on August 10; he
attached the writ petition to the August 13, 2018 notice of appeal. Included as part of the
notice of appeal/ writ petition is a letter from the trial court’s ADA coordinator indicating
the trial court held an in-camera hearing on Martin’s accommodation request and
determined that, while it would grant certain appropriate accommodations, it would deny
the requested continuance; the letter confirmed that the trial on the matter would
commence on August 13, 2018. On August 14, 2018, this court issued an order denying

response, and various medical information in his unredacted briefing. We limit our
discussion of this information to that necessary for resolving the appeal.

5
the petition for writ of mandate, as well as the request for stay. (Martin v. Superior Court
(H046088).)8
In his opening brief, Martin alleges he was hospitalized for emergency heart
surgery during the period of time the trial was set to take place. He does not cite any
evidence in the record supporting this claim.
On August 22, 2018, Martin filed a second notice of appeal, appealing from a
judgment or order entered on August 15, 2018. He checked the boxes on the Judicial
Council form indicating the order being appealed was a judgment of dismissal and/or an
order after judgment and wrote in “[d]ismissal after denial of request under CRC Rule
1.100.” In his opening brief, Martin does not cite to any portion of the record containing
an order issued August 15, 2018.9 However, he does cite to a written order filed
September 13, 2018, at which time the trial court granted Chen and Newton’s requests for
dismissal pursuant to section 581, subdivision (b)(5), which provides that an action can
be dismissed by the court, without prejudice, if one party fails to appear for trial, and the

8
On October 8, 2020, this court issued an order requiring Martin to show cause by
letter brief why the appeal filed August 13, 2018, from the denial of accommodations
should not be dismissed as taken from nonappealable order, notably an order that has
already been addressed in a writ petition proceeding. Under rule 1.100(g)(2), such an
order is expressly reviewable by writ petition; Martin filed a writ petition and received a
ruling on it from this court. In his letter brief filed October 23, 2020, Martin has not
shown good cause for this court to revisit this issue on appeal. While he suggests the
August 13, 2018 notice of appeal had nothing to do with the writ petition, it is clear from
the face of the notice of appeal that he was seeking review of the order that was the
proper subject of the writ petition. More importantly, the later-filed notice of appeal
seeking review of the order dismissing the action allows us to review all of the trial court
orders addressed by Martin in his opening brief. Thus, we hereby dismiss the notice of
appeal filed with the trial court on August 13, 2018.
9
Martin did designate an August 15, 2018 minute order as part of the record on
appeal. At the hearing, the trial court noted that this court denied Martin’s petition for
writ of mandate. It then granted Chen and Newton’s requests for dismissal pursuant to
section 581, subdivision (b)(5), without prejudice, and ordered Chen’s attorney to prepare
an order for the court’s signature.

6
other party appears and requests dismissal. The court found that Martin failed to appear
for trial on August 13, 14, and 15, 2018. Thus, it dismissed the matter as to Chen and
Newton without prejudice. The clerk of court served the order on Martin by mail on
September 13, 2018. Pursuant to rule 8.104(d), we treat the notice of appeal as filed
immediately after entry of the September 13, 2018 order, which is a final judgment,
appealable pursuant to section 904.1, subdivision (a). (See Herrscher v. Herrscher
(1953) 41 Cal.2d 300, 303-304.)
III. DISCUSSION
Martin states that the September 13, 2018 order of dismissal is the subject of his
appeal. He does not cite any legal authority specifically relating to that order, including
section 581, subdivision (b)(5), the statute under which the trial court dismissed the
action without prejudice. That provision gives the trial court discretion to dismiss an
action without prejudice when a party fails to appear at trial and the other party appears
and asks for dismissal. (§ 581, subd. (b)(5).) “When reviewing a discretionary
dismissal . . . an appellate court must presume that the decision of the trial court is
correct. ‘ “All intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown.” ’ [Citation.] . . . The
burden is on the party challenging the trial court’s decision to show that the court abused
its discretion. [Citation.] Thus, even if there is no indication of the trial court’s rationale
for dismissing an action, the court’s decision will be upheld on appeal if reasonable
justification for it can be found. ‘We uphold judgments if they are correct for any reason,
“regardless of the correctness of the grounds upon which the court reached its
conclusion.” ’ [Citation.]” (Howard v. Thrifty Drug & Discount Stores (1995) 10
Cal.4th 424, 443.) Here, the record shows that Martin knew the trial was scheduled for
August 13, 2018, and failed to appear; Chen and Newton each appeared and requested
dismissal under section 581, subdivision (b)(5), which the trial court granted. Martin has
not shown any error in the trial court doing so.

7
 Rather than discuss the dismissal order and section 581, subdivision (b)(5), Martin
first suggests that the trial court erred in denying his request for accommodations under
rule 1.100. Other than generally referencing the rule of court, Martin does not cite any
legal authority in support of any contentions he has in this regard. The trial court’s denial
of his request for a continuance as an accommodation was the subject of the writ petition
we denied. Martin has not identified any legal authority that would allow us to revisit the
issue on appeal.
Martin next questions whether a “court’s denial of a fee waiver request should
include a written statement of the reason for denial.” (Capitalization omitted.) Martin
did not cite to any portion of the record on appeal containing an order denying a request
for fee waiver. Nor does he cite any relevant legal authority requiring a trial court to
issue a written statement if it denies a fee waiver request, or otherwise discuss how this
question pertains to the issues on appeal.
The first legal authority Martin relies on is Boddie v. Connecticut (1971) 401 U.S.
371, 377 (Boddie), for the proposition that, “absent a countervailing state interest of
overriding significance, persons forced to settle their claims of right and duty through the
judicial process must be given a meaningful opportunity to be heard.” ·Without further
discussing the application of Boddie to the present case, Martin then contends he was
“prejudicially disenfranchised by the court’s taking away [his] income, obstructing
[Martin] obtaining representation by refusing to allow attorneys’ requests for upfront
time needed for preparation for trial and then denying [Martin] an ADA Accommodation
and ignoring medical incapacitation resulting due to emergency heart surgery, all causing
this case to be dismissed. . . .”
In Boddie, the United States Supreme Court found that the state court erred in
“denying, solely because of inability to pay, access to its courts to individuals who seek
judicial dissolution of their marriages.” (Boddie, supra, 401 U.S. at p. 374.) In doing so,
the Supreme Court confirmed that, “[d]ue process does not, of course, require that the

8
defendant in every civil case actually have a hearing on the merits. A State can, for
example, enter a default judgment against a defendant who, after adequate notice, fails to
make a timely appearance [citation], or who, without justifiable excuse, violates a
procedural rule. . . [citation]. What the Constitution does require is ‘an opportunity
granted at a meaningful time and in a meaningful manner,’ [citation] ‘for a hearing
appropriate to the nature of the case,’ [citation]. The formality and procedural requisites
for the hearing can vary, depending upon the importance of the interests involved and the
nature of the subsequent proceedings. [Fn. omitted.]” (Boddie, at p. 378.) Thus, we
consider whether Martin has met his burden to show that the trial court failed to provide
him a meaningful opportunity to present his case given the nature of the proceedings.
Regarding his income, Martin states that his income came from a rental property,
which the trial court ordered to be held in a blocked account. He argues that the trial
court denied him due process by taking away the income on an ex parte basis, without
giving him “adequate time” or “due consideration”; but he cites only to the September
2016 minute order, which provides no information about how the issue of putting the
rental payments for the property into a blocked account came before the court. The
minute order reveals only that the trial court adopted a tentative ruling, with no
appearances from the parties at the time the ruling was adopted. Martin did not cite to
any portion of the record confirming whether or not he received notice of the tentative
ruling, or that he was denied the opportunity to appear and object to that ruling.10
Because Martin did not provide us with the record of what occurred in the trial court, we
cannot determine whether the legal authority cited by Martin reveals an error in the trial
court proceedings. Absent such evidence, we indulge “[a]ll intendments and
presumptions … to support [the order] on matters as to which the record is silent. . . .”

10
On appeal, Martin did not designate any portion of the trial court record prior to
January 2018.

9
(Tanguilig, supra, 36 Cal.App.5th at p. 520.) Thus, we find no error in the trial court’s
order.
As for the contention that the trial court erred by refusing an attorney’s request for
time to prepare for trial, as already noted, Martin cited only to an entry in the trial court’s
register of actions in support of this allegation. The register of actions indicates on
November 1, 2017, Martin filed an ex parte application to continue trial, along with a
declaration in support of the application, and a notice of limited scope representation.
There is also an entry indicating the court denied the requested continuance. Nothing in
these docket entries specifies the basis on which Martin sought a continuance, or the
reason the trial court denied the continuance. He did not designate any of the pleadings
filed November 1, 2017, as part of the record on appeal, or cite to any of those pleadings
in his opening brief. Martin bears the burden of showing the trial court erred; he has not
done so with regard to the requested continuance, and we otherwise presume the order is
correct. (Tanguilig, supra, 36 Cal.App.5th at p. 520.)
Martin next alleges the trial court did not give him equal time to present his “side
of the issues to the Court,” claiming the court “repeatedly limited [Martin] to no more
than one minute after the opposing parties were allowed to speak at length. . . . He does
not cite to any portion of the record supporting this allegation or specify any particular
hearing or proceeding at which the court afforded him less time than the opposing parties.
He does cite legal authority in support of his claim (Cruz v. Superior Court (2004) 120
Cal.App.4th 175 (Cruz)) but does not explain how the case demonstrates that the trial
court erred. Cruz concerns the trial court’s duty to hold a noticed hearing before denying
a litigant’s request for a fee waiver where there is a “substantial evidentiary conflict”
concerning the litigant’s financial eligibility for in forma pauperis status. (Cruz, at
p. 180.) The appellate court in Cruz did not address any requirements regarding the
amount of time parties have to present evidence and argument at hearings. Martin has
not shown error on the trial court’s part in this regard.

10
 Martin similarly alleges, without citation to the record or further explanation, that
he was prejudiced because the trial court stopped providing court reporters at the hearings
in his case. He does not cite any legal authority in support of this argument. As with his
other allegations, Martin has not met his burden to show error.
Martin has not shown that the trial court erred in dismissing the action without
prejudice on September 13, 2018, or that it erred in issuing any of the other orders
referenced in Martin’s opening brief. We thus presume the order of dismissal is correct
and affirm.
IV. DISPOSITION
The August 13, 2018 appeal is dismissed. The September 13, 2018 order is
affirmed.

11
 _______________________________
Greenwood, P.J.

WE CONCUR:

_______________________________________________
Bamattre-Manoukian, J.

______________________________________
Grover, J.

Martin v. Chen et al.
No. H046123