Filed 9/25/14 Munoz v. Ruiz CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE


LUIS C. MUNOZ,                                                       B251883

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC456601)
         v.

ALEXANDER RUIZ et al.,

         Defendants and Respondents.



         APPEAL from an order of the Superior Court of Los Angeles. Teresa Sanchez-
Gordon, Judge. Affirmed.
         Bert V. Anthony for Plaintiff and Appellant.
         Peter S. Park for Defendants and Respondents.
                                   _______________________________
       Plaintiff Luis C. Munoz appeals from the trial court’s order denying his motion to
vacate the order denying his request for entry of judgment against defendant RCH
Broadcasting, Inc. (RCH). We affirm.
                                    BACKGROUND
       In March 2011, Munoz filed this action against defendants Alexander Ruiz and
Patty La Valle, seeking repayment of a debt in the amount of $35,710.70. Ruiz answered
the complaint in April 2011. In August 2011, Munoz amended his complaint by
substituting RCH for a fictitiously named doe defendant. On September 20, 2011,
Munoz personally served the amendment to the complaint on Ruiz, as the registered
agent for service of process of RCH, in North Carolina.
       RCH did not answer the complaint. On December 22, 2011, Munoz filed a
request for entry of default against RCH. Apparently the clerk entered the default the
same day.
       According to a notice of ruling filed by Munoz on August 27, 2012, on August 23,
2012, the trial court granted a motion by Ruiz and RCH’s counsel to be relieved as
attorney of record in this case. The court further ordered Munoz “to proceed with the
default of the corporation” (RCH). The court also set the trial and an order to show cause
regarding default for October 29, 2012.
       On August 30, 2012, Munoz submitted to the trial court a request for clerk’s
judgment against RCH, which the court rejected on September 5, 2012. The rejection
notice indicates the clerk could not enter judgment because the doe defendants had not
been disposed of and an answer had been filed in the case. The clerk instructed Munoz to
submit a request for court judgment.
       On September 14, 2012, Munoz submitted to the trial court a request for court
judgment against RCH, which the court rejected on October 2, 2012. The rejection
notice indicates Munoz failed to complete the sections of the request form listing the
name of the defendant against whom Munoz sought judgment and the dollar amount of




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the judgment. On October 15, 2012, Munoz submitted to the trial court a request for
                                                           1
court judgment with those sections of the form completed.
                                                                                        2
       On October 29, 2012, a court trial was held on Munoz’s complaint against Ruiz.
According to the minute order issued the day of trial, Munoz testified on his own behalf,
called Ruiz as a witness, and introduced exhibits. Ruiz called three witnesses and
introduced exhibits in his defense. The “[c]ause [was] argued” and the “[t]he matter
[was] taken under submission.” The minute order indicates the case was set that day both
for trial and for an order to show cause regarding default judgment against RCH. The
minute order does not include any other discussion regarding proceedings on the order to
show cause. The record on appeal does not include a reporter’s transcript of any
proceedings in this case.
       On November 14, 2012, the trial court issued a minute order on the submitted
matter, stating in pertinent part: “The Court orders Judgment entered in favor of
Defendant Alexander Ruiz, et al. and against Plaintiff Luis C. Munoz.” On January 16,
2013, the court issued another minute order, stating: “The Request for Entry of Default
Judgment pursuant to Code of Civil Procedure Section 585 is DENIED. Judgment for
Alexander Ruiz exonerates the Corporation” (RCH).
       On or about February 4, 2013, Munoz filed a request for statement of decision “as
to the proceedings with respect to the Order to Show Cause re Default Judgment as to
Defendant, RCH Broadcasting, Inc. on October 29, 2012, and as to the factual basis for
the denial of the Default Judgment as to Defendant, RCH Broadcasting, Inc.” On
February 6, 2012, the trial court issued a minute order denying the request for statement
of decision (without listing reasons for its ruling).



       1
        See page 4, infra, for Munoz’s representations regarding additional events
surrounding this request for judgment.
       2
        On or about September 25, 2012, Munoz submitted to the trial court a request for
dismissal of the complaint as to defendant La Valle.

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       On May 10, 2013, Munoz filed a motion under Code of Civil Procedure section
473, subdivision (b), seeking an order clarifying, modifying or vacating the January 16,
2013 order denying his request for judgment against RCH. The motion states, in
pertinent part: “On the date of the trial, October 29, 2012, the Court did not hold an
Order to Show Cause as to the Defendant, RCH Broadcasting, Inc. The attorney
representing Plaintiff believed that the Court had already processed the Request for Court
Judgment and therefore, the OSC was not necessary. The Court did not make any
reference as to Defendant, RCH Broadcasting, Inc., at the trial on that date. There was no
trial transcript reflecting that the Court and counsel for either side made any reference to
the OSC re Default Judgment re RCH Broadcasting, Inc., in fact, there was neither a
reporter, nor an electronic recording made.” Munoz represented, when the trial court
rejected his request for judgment on grounds he had not completed all relevant sections of
the form, “Plaintiff’s attorney noted that the Court had signed the form despite the reject
notice. He redrafted the form, requesting a Request for Court Judgment and resubmitted
the form.” The version of the form allegedly signed by the court is not part of the record
on appeal.
       In the motion to vacate, Munoz argued he “did not have the opportunity to
examine the Defendant, RUIZ, as to his defenses which were based upon irregular, all-
inclusive, sensational claims of breaches of contract and equity to differentiate RUIZ’s
defenses from those of defaulting Defendant, RCH, who . . . is deemed to have admitted
the allegations of the Complaint. [¶] By denying Plaintiff the opportunity to examine
Defendant RUIZ as to his defenses, which apparently were deemed to apply to Defendant
RCH for the purpose of exonerating the latter as a joint Defendant, the Plaintiff was
denied his due process right, first of all to know that the Court had, in fact, adopted
Defendant RUIZ’s defenses in the same light as those of defaulting Defendant RCH’s
defenses, and secondly, of the right to examine Defendant RUIZ as to his own
relationship to Defendant RCH; his relationship to Defendant RCH with respect to the
defenses alleged on Defendant RUIZ’s behalf, and any other relevant or germane issues.”
Citing Mirabile v. Smith (1953) 119 Cal.App.2d 685, Munoz asserted the trial court had

                                              4
discretion under Code of Civil Procedure section 579 to enter judgment against RCH
because Ruiz and RCH were severally liable to Munoz.
       As set forth in a notice of ruling filed by Munoz on August 22, 2013, on August 7,
2013, the trial court heard argument from Munoz on his motion to clarify, modify or
vacate the January 16, 2013 order denying his request for judgment against RCH. The
trial court ruled: “The motion is granted, in part, modified nun[c] pro tunc to replace
‘pursuant to Code of Civil Procedure § 585’ with [‘]pursuant to Mirabile v. Smith (1953)
                                                                3
119 Cal.App.2d 685, 689.’ Judgment in favor of defendant.”
                                        DISCUSSION
       In Mirabile v. Smith, supra, 119 Cal.App.2d 685, the Court of Appeal concluded
“no judgment could or should be entered against th[e] defaulting defendant” because the
“judgment sought to be obtained in the . . . action [was] a joint, and not a several
judgment” and “a grave injustice would result if the municipal court proceeded to enter
judgment against [the defaulting defendant], as contemplated, and the other answering
defendants established that the debt had been paid.” (Id. at p. 689.)
       Munoz argues the trial court erred in applying Mirabile v. Smith, supra, to the
facts of this case. He contends the court should have entered judgment against RCH
under Code of Civil Procedure section 579, which states: “In an action against several
defendants, the court may, in its discretion, render judgment against one or more of them,
leaving the action to proceed against the others, whenever a several judgment is proper.”
Munoz asserts the judgment he sought against RCH was a several judgment and not a
joint judgment.
       Based on the evidence presented at the trial against Ruiz—none of which is
included in the record on appeal—the trial court concluded no money was owed to
Munoz on the debt alleged in the complaint. Thus, the court declined to enter judgment
in favor of Munoz against any defendant. We have no cause to disturb the trial court’s

       3
           The trial court’s August 7, 2013 minute order is not included in the record on
appeal.

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decision. Munoz presented no evidence in connection with his motion to vacate
indicating the rationale of Mirabile v. Smith, supra, should not apply to the facts and
circumstances of his dispute with the defendants in this case. The record on appeal does
not even disclose the facts and circumstances of the parties’ monetary dispute. Munoz
has not demonstrated he could have presented evidence which would have established
judgment in favor of RCH was proper.
       On appeal we presume the trial court’s order is correct. “‘All intendments and
presumptions are indulged to support it on matters as to which the record is silent, and
error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557,
564.) Munoz has not shown error.
                                     DISPOSITION
       The judgment is affirmed. Respondent RCH is entitled to recover costs on appeal.
       NOT TO BE PUBLISHED.




                                                         CHANEY, J.


We concur:



              ROTHSCHILD, P. J.



              JOHNSON, J.




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