Filed 9/10/21 Luther v. Delabar CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
SHARI LUTHER, as Trustee, etc. et al.,
Plaintiffs and Respondents, G058629
v. (Super. Ct. No. 30-2018-00970240)
GEOFF DELABAR, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Sheila
Fell, Judge. Affirmed.
Knypstra Hermes, Bradley P. Knypstra, Grant Hermes and Robert Zermeno
for Defendant and Appellant.
Fitzgerald Yap Kreditor, Eoin L. Kreditor and David M. Lawrence for
Plaintiffs and Respondents.
* * *
Defendant Geoff Delabar appeals from the court’s grant of a motion for
summary adjudication in favor of plaintiffs Shari and Douglas Luther, as trustees of the
Douglas Richard Luther and Shari Nadeane Luther Joint Living Trust Dated March 31,
2011. Defendant, proceeding in propria persona, failed to make a timely opposition to
plaintiffs’ motion for summary adjudication. On appeal, defendant contends the court
erred by denying his request for a continuance of the motion. Because the record does
not show defendant requested a continuance or that the court abused its discretion, we
affirm the judgment.
FACTS
In January 2018, plaintiffs filed the operative first amended complaint
against defendant and his company, Delabar Construction Company (DCC). The
complaint alleged the parties entered into an oral contract whereby defendant and DCC
agreed to make certain improvements to plaintiffs’ home. Defendant and DCC allegedly
failed to complete the improvements or constructed them in a defective manner. The
complaint accordingly alleged claims for breach of contract, breach of implied warranty,
and negligence.
In March 2018, the court entered a default against defendant and DCC after
they failed to respond to the complaint. In July 2018, defendant and DCC filed a motion
to set aside the default, which the court granted in the following month. Defendant and
DCC then filed an answer to the complaint. In January 2019, defendant’s attorney filed a
motion to be relieved as the attorney of record for defendant and DCC. The court granted
the motion a few months later, and defendant proceeded in propria persona.
In June 2019, plaintiffs filed a motion for summary adjudication on their
breach of contract claim (the MSA). Defendant failed to file any response, and plaintiffs
filed a notice of nonopposition on September 12, 2019. The court held a hearing on the
MSA on September 18, 2019. There is no reporter’s transcript of the hearing so we do
not know what arguments were raised below. The court’s minute order indicates the
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court heard oral argument, defendant appeared in propria persona and did not file an
opposition, and plaintiffs “produced admissible evidence on each element of their breach
of contract cause of action.” The court accordingly found plaintiffs established they were
damaged in the amount of $115,069 and granted the MSA.
On September 19, 2019, plaintiffs filed and served a notice of the court’s
ruling. On the following day, plaintiffs sent a copy of the proposed order granting the
MSA to defendant. They requested defendant send any revisions within five days
pursuant to California Rules of Court, rule 3.1312(a). After defendant failed to respond,
plaintiffs filed the proposed order on September 27, 2019.
On October 1, 2019, defendant filed a notice indicating he had retained
counsel for the limited purpose of filing an objection to plaintiffs’ proposed order
granting the MSA. On the same day, defendant filed his objection with supporting
declarations. Among other things, the opposition indicated defendant “sincerely
apologize[d] for failing to properly oppose [the MSA] based on [his] mistaken belief that
[he] could oppose and request a continuance . . . at the September 18, 2019 hearing.” The
filing also appeared to be defendant’s untimely attempt to substantively oppose the MSA.
Because he previously had appeared in propria persona, he claimed the court should give
him “great deference” and either deny the MSA or allow a continuance so he could file
an opposition.
On October 25, 2019, the court granted the MSA, and plaintiffs dismissed
their remaining causes of action for breach of implied warranty and negligence. On
October 29, 2019, plaintiffs filed a proposed judgment. In November 2019, the court
entered judgment against defendant and DCC in the amount of $115,069.26 plus interest
and costs.
DISCUSSION
Defendant contends the court abused its discretion by failing to continue
the MSA in order to allow him to file an opposition. He claims he appeared in propria
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persona at the MSA hearing and requested a continuance, but the court denied the
request. Defendant accordingly argues the court did not consider the merits of the motion
and summarily granted it because of defendant’s “mistaken procedural error.” He also
contends the court abused its discretion by failing to consider his objection to plaintiffs’
proposed order along with his supporting evidence showing triable issues of material fact
on the breach of contract claim. For the reasons below, we disagree and affirm the
judgment.
Applicable Law and Standard of Review
Code of Civil Procedure, section 437c, subdivision (h) provides the trial
court shall deny a “motion [for summary judgment or summary adjudication], order a
continuance to permit affidavits to be obtained or discovery to be had, or make any other
order as may be just” if “it appears from the affidavits submitted in opposition to [the]
motion . . . that facts essential to justify opposition may exist but cannot, for reasons
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stated, be presented.” “When a party makes a good faith showing by affidavit
demonstrating that a continuance is necessary to obtain essential facts to oppose a motion
for summary judgment, the trial court must grant the continuance request. [Citation.]
‘Continuance of a summary judgment hearing is not mandatory, however, when no
affidavit is submitted or when the submitted affidavit fails to make the necessary showing
under [Code of Civil Procedure] section 437c, subdivision (h). [Citations.] Thus, in the
absence of an affidavit that requires a continuance under section 437c, subdivision (h),
we review the trial court’s denial of appellant’s request for a continuance for abuse of
discretion.’” (Park v. First American Title Co. (2011) 201 Cal.App.4th 1418, 1428.)
“‘“‘Generally, power to determine when a continuance should be granted is within the
discretion of the court, and there is no right to a continuance as a matter of law.
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All further statutory references are to the Code of Civil Procedure.
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[Citation.]’”‘“ (Mahoney v. Southland Mental Health Associates Medical Group (1990)
223 Cal.App.3d 167, 170.)
The record does not show the court abused its discretion.
Defendant claims the court erred by denying his oral request for a
continuance at the MSA hearing. While he argues “continuances are to be liberally
granted” under section 437c, subdivision (h), he does not reference any part of the record
showing he cited section 437c, subdivision (h) in the trial court proceedings. Section
437c, subdivision (h) requires a written request for a continuance to be submitted on or
before the opposition is due. But defendant never filed an opposition or request for a
continuance on or before the date his opposition was due. Section 437c, subdivision (h)
accordingly was inapplicable, and the granting of a continuance was within the discretion
of the court.
“When, as here, a request for a continuance of a summary judgment motion
is made on grounds other than the mandatory basis of . . . section 437c, subdivision (h),”
the party must make a showing of good cause. (Denton v. City and County of San
Francisco (2017) 16 Cal.App.5th 779, 791.) But there is no record of defendant even
requesting a continuance because defendant has not provided a reporter’s transcript of the
hearing. (Cal. Rules of Court, rule 8.120(b) [an appellant “must include” a reporter’s
transcript or agreed or settled statement when “rais[ing] any issue that requires
consideration of the oral proceedings”].) “The absence of a record concerning what
actually occurred at the hearing precludes a determination that the court abused its
discretion.” (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259; see also Eisenberg et
al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 4:45
[same].) When an appellant elects to proceed on a clerk’s transcript only, as defendant
did here, the appeal is “considered to be upon the judgment roll alone.” (Krueger v. Bank
of America (1983) 145 Cal.App.3d 204, 207.) “[E]very presumption is in favor of the
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validity of the judgment and all facts consistent with its validity will be presumed to have
existed.” (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924.)
Without a reporter’s transcript of the hearing, we do not know what
arguments were raised below or whether defendant made a showing of good cause for a
continuance. The court’s minute order also does not mention the purported request for a
continuance. Instead, the minute order indicates defendant did not file an opposition and
plaintiffs “produced admissible evidence on each element of their breach of contract
cause of action.” Thus, the only record of the hearing suggests the court granted the
unopposed MSA on its merits.
Relying on his opposition to plaintiffs’ proposed order, defendant insists he
requested a continuance at the MSA hearing. He points to his declaration where he stated
he “mistakenly believed [he] could request a continuance of the [MSA] at the September
18, 2019 hearing . . . . ” But defendant’s October 1, 2019 opposition to the proposed
order was filed almost two weeks after the court had already granted the MSA at the
hearing. Those documents do not establish what was actually argued at the hearing and
cannot serve as a substitute for a reporter’s transcript.
The cases defendant cites are also inapposite. Several of those cases found
the trial court abused its discretion by granting summary judgment based solely on the
opposing party’s failure to file a proper or timely separate statement with the opposition
brief. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 161-162; Parkview Villas
Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1214-1216;
Security Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 92-93, 98-99.) In other
words, the trial courts erred by entering judgment against the offending parties solely
because of a curable defect. Unlike the parties in those cases, defendant never even filed
an opposition that was arguably defective.
Defendant points to a few other cases where a party failed to file any
opposition to the summary judgment motion. For example, in Kalivas v. Barry Controls
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Corp. (1996) 49 Cal.App.4th 1152, 1161, a party failed to file an opposition and separate
statement to a summary judgment motion because she was misled by a local courtroom
rule. The appellate court held the local courtroom rule was invalid and the trial court
erred by denying the party’s motion for reconsideration. (Id. at pp. 1160-1163.) No
similar circumstances are present in the instant case. In Levingston v. Kaiser Foundation
Health Plan, Inc. (2018) 26 Cal.App.5th 309, 314-318, the appellate court found the trial
court abused its discretion by denying an ex parte application for a continuance that was
made on the day of the summary judgment hearing. Likewise, in Denton v. City and
County of San Francisco, supra, 16 Cal.App.5th at pp. 787-788, 792, the appellate court
held the trial court erred by denying a self-represented party’s request for a continuance
that was made on the day of the summary judgment hearing. Unlike the records in
Levingston and Denton, the record here does not show defendant requested a continuance
on the day of the hearing.
Defendant further contends the court erred by failing to consider the
evidence he submitted in opposition to plaintiffs’ proposed order. But defendant’s
objection to the proposed order was untimely. He had five days after service of the
proposed order to notify plaintiffs whether or not he approved of the proposed order.
(Cal. Rules of Court, rule 3.1312(a).) His “[f]ailure to notify [plaintiffs] within the time
required [was] deemed an approval.” (Ibid.) In any event, the court had broad discretion
as to whether it chose to consider any late-filed paper. (Bozzi v. Nordstrom, Inc. (2010)
186 Cal.App.4th 755, 765.) There is nothing in the record to show the court abused its
discretion.
Defendant’s reliance on section 473, subdivision (b) is also misplaced.
Section 473, subdivision (b) provides: “The court may, upon any terms as may be just,
relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against
him or her through his or her mistake, inadvertence, surprise, or excusable neglect.
Application for this relief shall be accompanied by a copy of the answer or other pleading
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proposed to be filed therein, otherwise the application shall not be granted, and shall be
made within a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken.” Because defendant never filed a motion for
relief, section 473, subdivision (b) was inapplicable.
Finally, defendant argues that, as a self-represented litigant, he should be
afforded deference. But “[a] party proceeding in propria persona ’is to be treated like any
other party and is entitled to the same, but no greater consideration than other litigants
and attorneys.’ [Citation.] Indeed, ‘“the in propria persona litigant is held to the same
restrictive rules of procedure as an attorney.”’” (First American Title Co. v. Mirzaian
(2003) 108 Cal.App.4th 956, 958, fn.1.)
DISPOSITION
The judgment is affirmed. Plaintiffs shall recover their costs on appeal.
THOMPSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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