Hao v. Millbrae Paradise CA2/5

Filed 9/23/13 Hao v. Millbrae Paradise CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

WEI HAO et al., B242085

Plaintiffs and Appellants, (Los Angeles County Super. Ct. No. GC048146) v.

MILLBRAE PARADISE etc. et al.,

Defendants and Respondents.

APPEAL from orders of the Superior Court of Los Angeles County, David G. Milton, Judge. Affirmed. Pierry Law Firm, Joseph P. Pierry; and Law Offices of Shin P. Yang and Shin P. Yang, for Plaintiffs and Appellants. Tron & Tron, Lanny M. Tron and Terry L. Tron, for Defendants and Respondents.

Defendants, Millbrae Paradise LLC and L.F. George Properties Corporation, successfully secured relief from entry of default and a default judgment. Plaintiffs, Wei Hao and Faxue Gong, appeal, arguing the trial court improperly granted defendants’ motion for relief on an ex parte basis. Defendants contend plaintiffs’ brief failed to present an adequate record for review. We agree. There are two relevant hearings. On June 29, 2012, an ex parte hearing was held on defendant’s motion to set aside the default and default judgment. And on July 9, 2012, an ex parte hearing was conducted on plaintiffs’ reconsideration motion. No court reporter was present at either proceeding. No hearing was held on the default prove up request. The judgment was based upon declarations. Plaintiffs have made no effort to secure a settled or agreed statement in connection with what occurred at the June 29 and July 9, 2012 hearings. The parties were advised the absence of a reporter’s transcript or a suitable substitute, such as a settled statement, was a problem. In an order filed November 1, 2012, we directed the parties to address the issue of the adequacy of the record on appeal. In numerous situations, appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided. (Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1672 [transcript of judge’s ruling on an instruction request]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [monetary sanctions hearing]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporter’s transcript fails to reflect