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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                             2
content of special instructions]; Buckhart v. San Francisco Residential Rent etc. Bd.
(1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., § 1094.5 petition]; Sui v.
Landi (1985) 163 Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction
hearing]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 711-712 [demurrer hearing];
Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of argument to the
jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporter’s
transcript or settled statement as to offers of proof]; Wetsel v. Garibaldi (1958) 159
Cal.App.2d 4, 10 [order confirming arbitration award].) As to any evidentiary matters, in
the absence of a transcript or a suitable substitute, the ruling is presumed to be correct.
(Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324; Ehrler v. Ehrler (1981) 126
Cal.App.3d 147, 154.)
       In addition, plaintiffs have failed to provide missing documents. For example,
plaintiffs have failed to include proofs of service of the summons and complaint on L.F.
George Properties Corporation. Although not dispositive, this is a further example of the
inadequacy of the record to assess the trial court’s exercise of discretion. (Rancho Santa
Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46; Hernandez v. California Hosp.
Med. Ctr. (2000) 78 Cal.App.4th 498, 502.)
       Without the settled statements, we cannot assess what additional arguments may
have been presented by the parties at the June 29 and July 9, 2012 hearings. We cannot
evaluate whether plaintiffs were prejudiced because both hearings were conducted on an
ex parte basis, as plaintiffs assert. All of plaintiffs’ jurisdictional arguments are premised
on the ex parte nature of the June 29, 2012 hearing. (Plaintiffs make no such argument as
to their July 9, 2012 reconsideration motion.) In terms of the complaint and default entry
request, defendants’ principals’ declarations denied knowledge of those documents
existence until after the judgment lien was recorded. These are issues involving matters
of discretion and fact finding. We cannot assess the reasoning of the trial court in ruling
as it did. Thus, without the settled statements, the orders under review must be affirmed.




                                              3
      The orders granting relief from default and the default judgment are affirmed.
Defendants, Millbrae Paradise LLC and L.F. George Properties Corporation, are awarded
their appeal costs from plaintiffs, Wei Hao and Faxue Gong.
                           NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                           TURNER, P. J.




I concur:




      KRIEGLER, J.




                                           4
Wei Hao et al. v. Millbrae Paradise etc. et al.
B242085


MOSK, J., Concurring




       I believe under the circumstances of this case, the trial court properly granted
defendant’s motion for relief from entry of a default and default judgment and properly
denied the motion for reconsideration. Plaintiff had the opportunity to and did appear at
the relevant proceedings.




                                                  MOSK, J.
