Randall v. Mousseau

Filed 8/24/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

WENDY RANDALL, B263945

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC458630) v.

GEOFFREY MOUSSEAU,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Maureen Duffy Lewis, Judge. Affirmed. Law Offices of Daniel B. Spitzer and Daniel B. Spitzer for Plaintiff and Appellant. Geoffrey Mousseau, in pro. per., for Defendant and Respondent.

_____________________________

Litigants in California may exercise their right to appeal without obtaining and transmitting to the Court of Appeal a verbatim transcript of the oral proceedings in the trial court. One alternative mechanism available to litigants is the settled statement, which requires the parties and the court to create an adequate, accurate record of the trial or ruling on appeal. When a proper motion is made, it is the obligation of the parties and the court to work together to prepare the settled statement. California law has long recognized this obligation: a trial court may not “deprive a litigant of his right of appeal by simply refusing to perform a plain duty.” Appellant Wendy Randall appeals a judgment for defendant after a court trial. There was no court reporter during the trial, and the trial court denied Randall‟s motion for a settled statement after trial. The trial court abused its discretion by denying Randall‟s motion, and as a result, of her right to her appeal, but Randall failed to seek timely review of that denial. Because the issue has been forfeited, and because the record before us is insufficient to permit review of the judgment, we affirm.

FACTUAL AND PROCEDURAL SUMMARY Wendy Randall sued Geoffrey Mousseau for breach of contract and common counts on April 1, 2011. The parties tried the case to the court commencing on January 20, 2015; the court issued a minute order finding for the defendant on both counts on January 22, 2015 and entered judgment for the defendant on March 9, 2015. Randall moved for a new trial and for judgment notwithstanding the verdict on March 18, 2015. The trial court heard and denied both motions on May 1, 2015. Randall filed a motion for a settled statement (Cal. Rules of Court, rules 8.130, 8.137) on May 15, 2015, attaching a proposed settled statement. Mousseau objected, asserting that Randall was not entitled to use a settled statement when she had made the decision not to hire a court reporter for the trial and subsequent proceedings. Mousseau also filed objections to the contents of the proposed statement, but did not propose any amendments.