Luther v. Delabar CA4/3

Filed 9/10/21 Luther v. Delabar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

SHARI LUTHER, as Trustee, etc. et al.,

Plaintiffs and Respondents, G058629

v. (Super. Ct. No. 30-2018-00970240)

GEOFF DELABAR, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Sheila Fell, Judge. Affirmed. Knypstra Hermes, Bradley P. Knypstra, Grant Hermes and Robert Zermeno for Defendant and Appellant. Fitzgerald Yap Kreditor, Eoin L. Kreditor and David M. Lawrence for Plaintiffs and Respondents.

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Defendant Geoff Delabar appeals from the court’s grant of a motion for summary adjudication in favor of plaintiffs Shari and Douglas Luther, as trustees of the Douglas Richard Luther and Shari Nadeane Luther Joint Living Trust Dated March 31, 2011. Defendant, proceeding in propria persona, failed to make a timely opposition to plaintiffs’ motion for summary adjudication. On appeal, defendant contends the court erred by denying his request for a continuance of the motion. Because the record does not show defendant requested a continuance or that the court abused its discretion, we affirm the judgment. FACTS In January 2018, plaintiffs filed the operative first amended complaint against defendant and his company, Delabar Construction Company (DCC). The complaint alleged the parties entered into an oral contract whereby defendant and DCC agreed to make certain improvements to plaintiffs’ home. Defendant and DCC allegedly failed to complete the improvements or constructed them in a defective manner. The complaint accordingly alleged claims for breach of contract, breach of implied warranty, and negligence. In March 2018, the court entered a default against defendant and DCC after they failed to respond to the complaint. In July 2018, defendant and DCC filed a motion to set aside the default, which the court granted in the following month. Defendant and DCC then filed an answer to the complaint. In January 2019, defendant’s attorney filed a motion to be relieved as the attorney of record for defendant and DCC. The court granted the motion a few months later, and defendant proceeded in propria persona. In June 2019, plaintiffs filed a motion for summary adjudication on their breach of contract claim (the MSA). Defendant failed to file any response, and plaintiffs filed a notice of nonopposition on September 12, 2019. The court held a hearing on the MSA on September 18, 2019. There is no reporter’s transcript of the hearing so we do not know what arguments were raised below. The court’s minute order indicates the