Filed 11/28/17
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION SEVEN

HAROLYN RHUE,                       No. B283248

       Petitioner,                  (Los Angeles County
                                    Super. Ct. No. BC590227)
       v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

      Respondent;
______________________________

SAM NAM LLC, et al.,

       Real Parties in Interest.


     ORIGINAL PROCEEDING; application for writ of
mandate. Writ granted.
     Harolyn Rhue, in pro. per.; Bahar Law Office and Sarvenaz
Bahar, for Petitioner.
     Frederick R. Bennett, County Council, Superior Court of
Los Angeles County, for Respondent.
     No appearance by Real Parties in Interest.

                     _________________________
      In California, litigants who comply with relevant statutes
and rules have a right to appeal an adverse judgment; the trial
court may not arbitrarily deny a litigant that right. In this
matter, the trial court refused a timely request by petitioner to
preserve a record so that she might appeal. Because the trial
court abused its discretion in doing so, we grant the petitioner’s
request for a writ of mandate and order the preparation of a
settled statement.

         FACTUAL AND PROCEDURAL SUMMARY

      Petitioner Harolyn Rhue sued Signet Domain, LLC and
Sam Nam (real parties in interest) in August 2015, in an action
to quiet title. Neither of the real parties appeared in the action,
and, in December 2015, the court entered their default. In May
2016, the trial court, on its own motion, set a hearing to dismiss
the complaint. Two months later, the court vacated the default
against Sam Nam, who still had not appeared, and offered Rhue
an opportunity to amend her complaint. In August, on Rhue’s
motion for reconsideration, the court denied the motion and
granted judgment on the pleadings against Rhue. The court’s
order stated no reason for its action.
      Rhue moved to obtain a settled statement, as the August
hearing had not been reported. The trial court denied the motion
in May 2017, concluding, “no settled statement is necessary or
required.”1 Rhue filed a writ, seeking relief from this Court; we

1     “Plaintiff’s
                 motion to use a settled statement on appeal
(which implicitly also includes a request to have a statement
ordered and prepared) is denied. As Plaintiff herself admits, the
motion in issue was ruled upon based only on the papers before
the Court and argument. No independent evidence was




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issued an order to show cause on June 28, 2017. Real parties
filed no response in this Court; the Superior Court served a letter
brief, which it requested be deemed the argument of amicus
curiae.
                           DISCUSSION

      In August 2016, almost a year before the trial court in this
case determined that no record was necessary for this Court’s
review, we published Randall v. Mousseau (2016) 2 Cal.App.5th
929. In that case, we made clear that the discretion of the trial
court to deny a request for a settled statement is limited: “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.’” (Id. at 931.)
      In Randall, we acknowledged the problem faced by too
many litigants in California’s courtrooms, where there is no
longer a court reporter provided as a matter of course. We
provided guidance as to the scope of the trial court’s discretion in
considering whether to order a settled statement and emphasized
that the court must exercise that discretion “in a manner that


introduced at the hearing meaning none outside of whatever
appeared in the papers before the Court. No testimony was
taken. It is also impossible to attempt to reconstruct-even were it
appropriate or necessary to do so-what was specifically said in
oral argument, which, in all events, is generally not to exceed the
points and especially facts pled in the papers before the Court.
The ‘correctness’ of the Judge’s ruling is reviewed based on the
papers before the trial court, no settled statement is necessary or
required and Plaintiff’s motion is denied.”




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does not interfere with the litigant’s right to appeal. (Burns v.
Brown (1946) 27 Cal.2d 631, 636, 166 P.2d 1; see also St. George
v. Superior Court (1949) 93 Cal.App.2d 815, 817, 209 P.2d 823
[trial court’s power over the record must not be exercised in an
arbitrary manner]; Eisenberg v. Superior Court (1956) 142
Cal.App.2d 12, 18, 297 P.2d 803 [‘full and plenary power over [the
record] is reposed in the trial judge, subject only to the limitation
that he does not act arbitrarily”’].)” (Randall v. Mousseau, supra,
2 Cal.App.5th at p. 934.)
       California Rule of Court, rule 8.1372 governs requests for
statements of decision, and sets the relevant parameters. The
initial obligation is on the litigant seeking to proceed by way of
settled statement. Rule 8.137(a) requires the litigant to file a
motion which demonstrates that one of three criteria is satisfied.
(Rule 8.137(a)(2).) Rhue satisfied her obligation under that rule
by showing the designated proceedings were not reported. (Rule
8.137(a)(2)(B).) The trial court then had the obligation to grant
or deny the motion, in writing. (Mooney v. Superior Court (2016)
245 Cal.App.4th 523, 531.) When a trial court denies the motion,
as the trial court did here, it must provide reasons demonstrating
a “‘justifiable excuse’ why a settled statement could not be
produced using the established procedures.” (Id. at 533.)
       The trial court failed to provide a “justifiable excuse” in this
case. First, it undertook to decide what this Court would need to
review the judgment; that determination, however, is not
properly before the trial court. It is the litigant who must make a
judgment whether he or she intends “to raise any issue that
requires consideration of the oral proceedings in the superior

2     All further references to rules are to the California Rules of
Court.




                                  4
court.” (Rule 8.120(b).) If the litigant does not provide a record of
the proceedings, the reviewing court may order the record
augmented by oral proceedings to “prevent a miscarriage of
justice.” (Rule 8.130(a)(4).) This is not the trial court’s decision
to make.
       The trial court’s second reason, that it would be difficult for
it to reconstruct the hearing, also fails to provide a justifiable
basis for its denial of the motion. Instead, it stands in the face of
settled case law: a trial court’s stated difficulty in remembering
what happened during the proceedings is not a ground to deny a
settled statement. (Western States Const. Co. v. Municipal Court
(1951) 38 Cal.2d 146, 147-148; see also Mooney v. Superior Court,
supra, 245 Cal.App.4th at pp. 532-533.)3
      The letter brief filed on behalf of the Superior Court does
not address this authority. Instead it argues the court’s denial
was justified because no evidence was taken at the hearing and
the ruling was a legal ruling requiring de novo review. The brief
argues that these facts demonstrate that no statement of decision
was necessary.
      Counsel for the Superior Court relied only on one case:
Chodos v. Cole (2012) 210 Cal.App.4th 692. There the appellate
court, over a dissent, determined that a transcript of the oral


3      The trial court also indicated its belief that, in light of the
fact that oral argument generally cannot exceed the points made
in the filings, no settled statement was necessary. If that were
correct, on appeal, we would have to conclude in all cases that the
parties forfeited any point related to, but not unequivocally
stated in, their filings. Given the purpose of oral argument, to
allow the parties to respond to the court’s concerns about the
issues, this position ignores reality.




                                  5
argument was not necessary for its determination of the matter
on the merits. The court noted that neither party relied on the
oral argument before the trial court, the issue was purely one of
law, and the standard of review was de novo. None of that is the
case here.
       Here, the trial court vacated the entry of default and later
dismissed the action without stating the grounds for either
decision; it denied the motion for reconsideration. Two of these
decisions involved the exercise of discretion by the trial court;
accordingly, we review those determinations for abuse of
discretion. (Farmers Ins. Exchange v. Superior Court (2013) 218
Cal.App.4th 96, 106 [motion for reconsideration]; Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 981 [relief from default]. In such
a case, a settled statement may be indispensable. (Southern
California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483 [In
contrast to cases involving de novo review, “[i]n many cases
involving the substantial evidence of abuse of discretion standard
of review . . . a reporter’s transcript or an agreed or settled
statement of the proceedings will be indispensable.”]
       In this case, the trial court stated no reasons for its rulings
in its minute orders. Moreover, all of the rulings were based on
the trial court’s own motions and not on filings made with the
court by real parties. The court took the extraordinary action of
vacating an unchallenged default and dismissing the entire
action without providing any explanation of the grounds for doing
so. In these circumstances, the trial court’s denial of the request,
if allowed to stand, would deprive this Court of the information
necessary to rule on the merits of Rhue’s appeal.4

4     That result implicates other serious issues as well. (See
Cal. Code Jud. Ethics, Canon 3 (b)(7) [“[a] judge shall accord to




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      Here, as in Randall, the decision of the trial court to deny
the request for a settled statement would be fatal to Rhue’s
attempt to obtain review of the trial court’s decisions. “The
failure to comply with the Rule and resulting absence of a record,
is more than significant to the appellant. Appealed judgments
and orders are presumed correct, and error must be affirmatively
shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86
Cal.Rptr. 65 468 P.2d 193.) Consequently, appellant has the
burden of providing an adequate record. (Maria P. v. Riles (1987)
43 Cal.3d 1281, 1295, 240 Cal.Rptr. 872, 743 P.2d 932; Jade
Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229
Cal.App.4th 635, 644, 177 Cal.Rptr.3d 184.) Failure to provide
an adequate record on an issue requires that the issue be
resolved against appellant. (Maria P., supra, at pp. 1295-1296,
240 Cal.Rptr. 872, 743 P.2d 932.) Without a record, either by
transcript or settled statement, a reviewing court must make all
presumptions in favor of the validity of the judgment. (Elena S.
v. Kroutik (2016) 247 Cal.App.4th 570, 202 Cal.Rptr.3d 318.) As
has occurred here, appellant is effectively deprived of the right to
appeal.” (Randall v. Mousseau, supra, 2 Cal.App.5th at p. 935.)
      As in Randall, the trial court here could, by its own actions,
have denied Rhue’s right to appeal. That was an abuse of
discretion.




every person who has a legal interest in a proceeding, or that
person's lawyer, the full right to be heard according to law”].)




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                         DISPOSITION

     The petition for writ of mandate is granted. Let a
peremptory writ of mandate issue directing the trial court to
prepare a settled statement.



                                     ZELON, Acting P. J.




We concur:




      SEGAL, J.




      BENSINGER, J.





      Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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