Curtis v. Lavian CA2/3

Filed 6/22/21 Curtis v. Lavian CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

GRETA CURTIS et al., B300553

Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. BC671590
v.

JACOB LAVIAN et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Anthony J. Mohr, Judge. Affirmed.
Greta Curtis, in pro. per., for Plaintiff and Appellant.
Stephen H. Krumm for Defendant and Respondent Victoria
Olshansky.

_____________________________________
 INTRODUCTION

Greta Curtis appeals from a judgment entered in favor of
Victoria Olshansky after a court trial. Curtis contends the court
abused its discretion by setting aside Olshansky’s default, on its
own motion, and the judgment did not dispose of all of Curtis’s
claims against Olshansky. Because Curtis has not provided an
adequate record to review her contentions, we affirm the
judgment.

BACKGROUND

In August 2017, Curtis and Eric Radley (collectively,
plaintiffs) sued Olshansky and three other defendants for breach
of contract, fraud, and negligence.1 According to the purchase
agreement attached to the complaint, Radley agreed to buy
commercial property owned by Olshansky for $950,000. Although
Curtis is not a party to the purchase agreement, she purports to
be Radley’s assignee and a co-buyer of the property. In essence,
Curtis alleges that Olshansky and the other defendants breached
the purchase agreement by failing to disclose pertinent
information about the property and by failing to procure a
property information report.
On September 19, 2017, plaintiffs filed an application for
entry of default against Olshansky. On October 3, 2017, the clerk
rejected the request because both plaintiffs had not signed the
application and had not served Olshansky with the first amended
complaint.

1The other named defendants are Jacob Lavian, Linda Terry, and
Keller Williams Realty Westside.

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 On September 29, 2017, plaintiffs filed an application for
entry of default against Olshansky in her individual capacity and
in her capacity as trustee of the Olshansky Living Trust. On the
same date, plaintiffs filed proofs of service stating that
Olshansky, in her individual capacity and in her capacity as
trustee, had been personally served with the summons and
amended complaint on August 15, 2016, the year before plaintiffs
filed their lawsuit. On October 18, 2017, the clerk rejected the
request because both plaintiffs had not signed the application.
The clerk also noted there is no Victoria Olshansky Trustee
named as a party in the pleading.
On October 11, 2017, plaintiffs filed an amended proof of
service stating that Olshansky had been personally served with
the summons, amended complaint, amendment to complaint, and
other documents, on August 15, 2017. Also on October 11, 2017,
plaintiffs filed an application for entry of default against
Olshansky. Although plaintiffs did not check the box requesting
entry of clerk’s judgment or a court judgment on the application,
they sought more than $2,000,000 in damages. The first page of
the application contains the clerk’s stamp and signature, and
indicates that default was entered as requested on October 11,
2017. However, on October 26, 2017, the clerk rejected the
request for entry of default submitted on October 10, 2017 [sic]
because default had already been entered against Olshansky on
October 10, 2017—i.e., before plaintiffs filed their most recent
application. In addition, the clerk rejected the request for entry of
clerk’s judgment because a clerk’s judgment cannot be entered on
causes of action for fraud and negligence.
Notwithstanding that default was apparently entered
against her on October 11, 2017, Olshansky filed an answer and

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cross-complaint on October 24, 2017. The cross-complaint
asserted claims for breach of contract, slander of title, and fraud
against both plaintiffs. Plaintiffs were served with the answer
and cross-complaint on October 20, 2017. Olshansky, through
counsel, and Curtis appeared at case management conferences
held on December 12, 2017, January 4, 2018, February 22, 2018,
and April 19, 2018. And on April 19, 2018, Olshansky gave
written notice of the final status conference and trial date to
Curtis and the other parties involved in the lawsuit.
Based on what we can glean from the limited record before
us, the court conducted a one-day bench trial on July 10, 2019 at
which Curtis and Radley testified and nine exhibits were marked
for identification. The minute order from that date also indicates
that, on the court’s own motion, the default entered on October
11, 2017 against Olshansky was set aside and vacated, and
Olshansky’s answer filed on October 24, 2017 “is to stand.”
After Curtis rested, Olshansky’s motion for judgment under
section 631.8 of the Code of Civil Procedure was denied. But,
after further argument, the court granted the motion as to the
fraud cause of action. After Olshansky rested, the court found
that “the evidence does not preponderate for [Curtis]. Moreover,
[Curtis] lacks standing to bring this action.” Accordingly, the
court ordered a judgment entered for Olshansky and against
Curtis on the complaint filed in August 2017 for a total of $0.00,
and, at Olshansky’s request, dismissed the cross-complaint
without prejudice.
On August 8, 2019, the court entered judgment in favor of
Olshansky and against Curtis. Curtis filed a timely notice of
appeal and elected to proceed with a clerk’s transcript only.
Notably, the Judicial Council form Curtis used to designate the

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record, where she checked the box stating: “I choose to proceed: ...
WITHOUT a record of the oral proceedings (what was said at the
hearing or trial) in the superior court,” contains the following
admonition: “I understand that without a record of the oral
proceedings in the superior court, the Court of Appeal will not be
able to consider what was said during those proceedings in
deciding whether an error was made in the superior court
proceedings.”

DISCUSSION

Curtis argues the court abused its discretion by setting
aside Olshansky’s default on its own motion on July 10, 2019,
and the subsequent judgment did not dispose of all her claims
against Olshansky.
Olshansky does not dispute that default was in fact entered
against her on October 11, 2017. But she argues that Curtis has
forfeited her arguments by failing to designate an adequate
appellate record. Olshansky further argues that the judgment in
her favor disposed of all claims and causes of actions asserted
against her by Curtis.
It is well settled that “[a]ppealed judgments and orders are
presumed correct, and error must be affirmatively shown.”
(Hernandez v. California Hospital Medical Center (2000) 78
Cal.App.4th 498, 502, citing Denham v. Superior Court (1970)
2 Cal.3d 557, 564.) As the party challenging the court’s
presumably correct findings and rulings, Curtis is required “to
provide an adequate record to assess error.” (Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1295.) Certainly, we are mindful that
Curtis is representing herself on appeal. Her status as a party
appearing in propria persona, however, does not provide a basis
for preferential consideration. A self-represented party is to be

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treated like any other party, and is entitled to the same—but no
greater—consideration than other litigants and attorneys. (See
Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113,
1125.)
We agree with Olshansky that the record is inadequate to
evaluate Curtis’s assertions of error by the trial court. As noted,
we do not have a reporter’s transcript or suitable substitute of the
July 10, 2019 proceedings. Consequently, we are in no position to
evaluate Curtis’s arguments. (See Gee v. American Realty &
Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [if the record
is inadequate for meaningful review, the appellant defaults and
the decision of the trial court must be affirmed].)
We also reject Curtis’s suggestion that the court could not,
on its own motion, grant Olshansky relief from entry of default.
Here, the litigation proceeded for almost two years with
Olshansky’s and Curtis’s participation after default was entered
by the clerk in October 2017. A court should have the power to
rectify mistakes, such as the erroneous entry of default or the
erroneous belief that no default had been entered. The majority of
the reported cases on point support our conclusion. (Compare,
e.g., Allstate Ins. Co. v. Fisher (1973) 31 Cal.App.3d 391, 396–397
[court properly set aside default on its own motion], and Stuart v.
Alexander (1935) 6 Cal.App.2d 27, 28 [same], with Remainders,
Inc. v. Superior Court (1961) 192 Cal.App.2d 411, 412–413 [court
cannot grant defendant relief from default on its own motion].)
We think vesting such inherent authority in the trial court is the
better rule.

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 DISPOSITION

The judgment is affirmed. Olshansky shall recover her
costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.
WE CONCUR:

EGERTON, J.

THOMAS, J.

Judge of the Los Angeles County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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