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Filed 12/22/15 Choy v. Robertson CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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