Choy v. Robertson CA1/3

Filed 12/22/15 Choy v. Robertson CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION THREE

RAYMOND CHOY,

Plaintiff and Appellant,

A142575

v.

CAROLE ROBERTSON et al., (City & County of San Francisco

Super. Ct. No. CGC-11-511137)

Defendants and Respondents.

This appeal arises out of a commercial lease and concerns a claim that the tenants,

defendants Carole and Eugene Robertson, removed property belonging to the landlord,

plaintiff Raymond Choy, at the conclusion of the lease. Following a court trial, judgment

was entered in favor of defendants. On appeal, plaintiff contends the court erred as a

matter of law in concluding that the defendants owned the items removed from the leased

premises. Because there is no statement of decision and plaintiff chose to proceed

without a record of the oral proceedings at trial, we lack a record adequate to assess

plaintiff’s contention. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants previously sued plaintiff, their landlord, for interfering with the sale of

their bar, which was located at the leased premises. The original action was tried to a

jury in Lake County in 2011.

While the original action was still pending, plaintiff filed his own lawsuit in

propria persona against defendants in Lake County. Plaintiff’s lawsuit, which is the

subject of this appeal, was transferred to San Francisco in 2011. Plaintiff’s complaint

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includes causes of action entitled letter of extortion, frivolous lawsuit, theft, fraud, and

property restoration. The gravamen of the theft and property restoration causes of action

is that defendants removed fixtures from the leased premises—i.e., the bar—without

plaintiff’s consent when they vacated the premises at the termination of the lease.

The matter proceeded to a court trial limited to the issue of whether defendants

had wrongfully removed fixtures from the leased premises without plaintiff’s permission.

At the conclusion of the trial, the court found in favor of defendants. The court’s minute

order states: “Plaintiff shall take nothing by way of the complaint. There is nothing in

the lease that requires the tenant to seek permission to remove the tenant’s property.”

After the court entered judgment in favor of defendants, plaintiff filed a timely notice of

appeal. Plaintiff chose to proceed on appeal without a record of the oral proceedings in

the trial court.

DISCUSSION

On appeal, plaintiff contends that the trial court’s decision on the ownership of

fixtures was incorrect as a matter of law. He claims that the parties’ lease clearly

establishes that any property affixed to the leased premises, whether installed by the

tenant or the landlord, became the property of the landlord.

In the absence of a reporter’s transcript or other record of the oral proceedings in

the trial court, the appeal is treated as an appeal on the judgment roll. (Allen v. Toten

(1985) 172 Cal.App.3d 1079, 1082–1083.) On such an appeal, the evidence is

conclusively presumed to support the trial court’s findings. (Nielson v. Gibson (2009)

178 Cal.App.4th 318, 324.) This court’s review is necessarily “limited to determining

whether any error ‘appears on the face of the record.’ ” (Id. at pp. 324–325.)

In addition to the fact that this is a judgment roll appeal, there is no statement of

decision. There are two consequences resulting from a failure to request a statement of

decision. “First, the party waives any objection to the trial court’s failure to make all

findings necessary to support its decision. Second, the appellate court applies the

doctrine of implied findings and presumes the trial court made all necessary findings

supported by substantial evidence. [Citations.] This doctrine ‘is a natural and logical

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corollary to three fundamental principles of appellate review: (1) a judgment is presumed

correct; (2) all intendments and presumptions are indulged in favor of correctness; and

(3) the appellant bears the burden of providing an adequate record affirmatively proving

error.’ ” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.)

Plaintiff argues that error is shown on the face of the record because the trial

court’s legal conclusion about ownership of fixtures is inconsistent with the terms of the

parties’ lease. The parties stipulated at trial that two provisions of the lease—paragraphs

11 and 47—bear upon the issue of removing fixtures. Paragraph 11 provides in relevant

part: “All alterations, additions, fixtures and improvements, whether temporary or

permanent in character, made in or upon the premises either by Tenant or Landlord (other

than furnishings, trade fixtures and equipment installed by Tenant), shall be Landlord’s

property and, at the end of the term hereof, shall remain on the premises without

compensation to Tenant; provided that, if Landlord so requests, Tenant shall remove all

such alterations, fixtures and improvements from the premises and return the premises to

the condition in which they were delivered to Tenant.” (Italics added.) Paragraph 47

concerns the surrender of the premises and provides in relevant part: “Tenant, during the

last thirty (30) days of such term shall remove all its trade fixtures . . . .”

The lease terms are plain. They give the landlord ownership of all fixtures “other

than furnishings, trade fixtures and equipment installed by Tenant.” The tenant has the

responsibility to remove its trade fixtures before the lease term expires. The lease terms

are consistent with the court’s conclusion that “nothing in the lease . . . requires the tenant

to seek permission to remove the tenant’s property.” Nothing in paragraphs 11 or 47 of

the lease requires the tenant to secure the landlord’s permission before removing the

tenant’s own property and trade fixtures. Accordingly, we reject plaintiff’s contention

that the trial court’s legal conclusion is incorrect as a matter of law.

Plaintiff’s real complaint appears to be that items removed by defendants did not

qualify as trade fixtures and thus were not the defendants’ property. He asserts that “the

bar, back bar, sinks, beer cases and light fixtures” do not fit the legal definition of trade

fixtures and were plaintiff’s property under the lease.

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The problem with plaintiff’s argument is that we do not have a record of the trial.

We do not know what oral testimony was presented to the court. Plaintiff relies on

defendants’ trial brief as the basis for his factual assertions and goes so far as to state that

the “factual events can be taken from Defendants’ trial brief . . . .” However, a party’s

trial brief is not evidence and does not substitute for a record of what transpired at trial.

Consequently, we have no evidentiary basis to conclude that defendants took anything

from the leased premises, much less property belonging to plaintiff.

The trial court impliedly found that defendants removed nothing more than

“furnishings, trade fixtures and equipment” that they owned. In the absence of a record

of the oral proceedings at trial or a statement of decision, we are in no position to

conclude otherwise.

In light of our conclusion, it is unnecessary to address plaintiff’s contention that

rulings in the earlier, Lake County action did not have res judicata effect that would

preclude him from pursuing his claims in this action.

DISPOSITION

The judgment is affirmed. Defendants shall be entitled to recover their costs on

appeal.

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_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Siggins, J.

A142575

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