Filed 3/24/15 P. v. Thompson CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


THE PEOPLE,                                                                 2d Civil No. B257614
                                                                       (Super. Ct. No. 56-2013-443717-
     Plaintiff and Respondent,                                                  CU-MC-VTA)
                                                                               (Ventura County)
v.

NOEL THOMPSON,

     Defendant and Appellant.



                   Defendant Noel Thompson appeals a default judgment entered against him
for $6 million after the court denied his motion to vacate a default. He did not file an
answer to the People's complaint in its civil action for injunctive relief and civil penalties.
(Bus. & Prof. Code, § 17200 et seq.) We conclude, among other things, that Thompson
has not shown he was entitled to relief from default due to his counsel's surprise,
inadvertence, mistake or neglect. (Code Civ. Proc., § 473, subd. (b).)1 We affirm.
                                                         FACTS
                   The District Attorney filed a complaint for permanent injunction and civil
penalties for unfair business practices (Bus. & Prof. Code, § 17200 et seq.) against
Thompson. The People alleged Thompson was "an owner, managing officer and
director" of defendants Body Shaping Gyms, Inc. (BSG) and Body Shaping Investments,

1
    All statutory references are to the Code of Civil Procedure unless otherwise stated.
LLC (BSI), which entered into "health studio services contract[s]" that were misleading
to consumers. BSG was alleged to be conducting business under the name "Gold's
Gym."
              The trial court issued a temporary restraining order and a subsequent
preliminary injunction prohibiting the defendants from selling any "health studio services
contract that does not comply with Civil Code sections 1812.80 et. seq." and other
provisions of state law protecting consumers.
              On December 20, 2013, Ron Bamieh, the attorney for Thompson and the
other defendants, informed the trial court that BSG "has filed bankruptcy."
              The trial court found this unfair business practice action fell within the
police power exception to the bankruptcy stay order. It said, "[T]he automatic stay does
not prevent this court from proceeding with the litigation of this action."
              Thompson filed a demurrer and motion to strike in response to the
complaint. The trial court denied the motion to strike and overruled the demurrer. It
ordered Thompson to file an answer by February 6, 2014.
              On February 4, Bamieh's firm sent an email to the District Attorney's office
requesting a 15-day extension of time to answer the complaint. In response, Deputy
District Attorney Karen Wold said that defendants had received an earlier extension of
time, but they "filed a frivolous demurrer and motion to strike[.]" She also said, "If you
are seeking another extension beyond that which we previously granted, you will need to
seek approval from the Court."
              On February 6, 2014, Bamieh filed an application for an order extending
time to serve an answer to the complaint. He claimed he needed additional time to
answer because "our firm must make a formal application with the Bankruptcy Court to
be appointed BSG's special litigation counsel under 11 USC § 327(e) in order to
represent and be compensated for representation in the current action." Bamieh set a
hearing date for the motion for an extension for March 14, 2014.
              On February 10, 2014, Wold sent an email to Bamieh's firm stating, "As a
professional courtesy, we wanted to advise you that we are going to be filing a request to


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enter default judgment against all three of your clients tomorrow." On the same day,
Danielle De Smeth, an associate in Bamieh's firm, responded by email. She asked, "Will
you be taking the currently noticed depositions off calendar pending the request to enter
default?"
              The next day, Wold filed a request to enter a default. The trial court
subsequently entered a default judgment finding Thompson and the other defendants
"jointly and severally" liable for $5 million in civil penalties and $1 million as restitution.
              At the hearing on the motion to extend the time to answer, the trial court
stated, "A default was entered on Feb 11, 2014 and the Court currently lacks jurisdiction
to hear the motion."
              Bamieh filed a motion to set aside and vacate default and to grant
defendants leave to defend. In the motion, he said he "was surprised [to] learn that
despite Defendants' application to extend, [the People] filed a request for default[.]"
(Italics added.) In his declaration, he said, "I failed to timely file Defendants 'Answer to
the Complaint because defendant BSG was in the process of applying with the
Bankruptcy Court to have Bamieh & Erickson appointed as special litigation counsel
under 11 USC section 327(e) in order to represent BSG and be compensated for
representation in the current action." (Italics added.) "I was surprised to learn that
Plaintiff filed the request for entry of default because Plaintiff was aware that BSG was in
the process of applying with the Bankruptcy Court . . . which is the reason my firm filed
Defendants' application for an extension of time[.]"
              The trial court denied the motion. Thompson appealed. He is represented
by new counsel on appeal.
                                       DISCUSSION
            Relief for Thompson Because His Attorney Did Not File An Answer
              Thompson contends the default judgment must be vacated. He claims the
trial court erred by denying his motion because the default was the result of his attorney's
mistake in failing to file an answer to the complaint.



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               Section 473, subdivision (b) provides in relevant part, "[T]he court shall,
whenever an application for relief is made no more than six months after entry of
judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting
to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default
entered by the clerk against his or her client[.]" (Italics added.)
               The Legislature intended this provision to provide "mandatory" relief for
clients whose attorneys' mistakes result in default judgments. (Hu v. Fang (2002) 104
Cal.App.4th 61, 64.) The goal "'is to relieve the innocent client of the burden of the
attorney's fault, to impose the burden on the erring attorney, and to avoid precipitating
more litigation in the form of malpractice suits.' [Citation.]" (Ibid.) This provision
includes relief for "inexcusable" omissions. (Zamora v. Clayborn Contracting Group,
Inc. (2002) 28 Cal.4th 249, 257 ["The purpose of this provision 'was to alleviate the
hardship on parties who lose their day in court due solely to an inexcusable failure to act
on the part of their attorneys'"].)
               Thompson contends the trial court erred by not granting relief because his
counsel declared the default occurred because of his surprise that the People would file a
default. He claims his attorney's declaration showed a ground for relief under the statute.
               The People contend Thompson's argument is based on the assumption that
the trial court believed his counsel's declaration. They claim he has not shown why the
court could not find: 1) that his counsel's claim of surprise was not credible, 2) the reason
his counsel did not answer the complaint was not a mistake, but rather a deliberate
litigation decision that does not fall within the client relief provision of the statute.
               "The court's determination of whether the default was caused by the
attorney's mistake, inadvertence, surprise, or neglect is in part a credibility determination.
[Citation.]" (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915.) "'Credibility is an
issue for the fact finder . . . we do not reweigh evidence or reassess the credibility of
witnesses[.]'" (Ibid.) "'When . . . 'the evidence gives rise to conflicting reasonable
inferences, one of which supports the findings of the trial court, the trial court's finding is
conclusive on appeal[.]' [Citation.]'" (Ibid.)


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               In reviewing the record, "'we must draw all reasonable inferences in favor
of the judgment.' [Citation.]" (Carron v. Andrew (1955) 133 Cal.App.2d 412, 416.)
Where a party filing a motion to vacate does not establish the requisite causation element
for the ground of relief, the motion is properly denied. (Cowan v. Krayzman, supra, 196
Cal.App.4th at pp. 915-916.) Although section 473, subdivision (b) is referred to as a
mandatory relief provision, the statute also provides that relief is not granted where "the
court finds that the default or dismissal was not in fact caused by the attorney's mistake,
inadvertence, surprise, or neglect." (State Farm Fire & Casualty Company v. Pietak
(2001) 90 Cal.App.4th 600, 608.)
              Here the declaration in support of the motion was based on the claim that
counsel was surprised the People would seek a default. Surprise is a "'condition or
situation in which a party . . . is unexpectedly placed to his injury[.]'" (Italics added.)
(Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) But the People gave Bamieh's
firm a courtesy warning that a default would be entered. De Smeth's email shows the
firm received that warning. These facts are uncontradicted. In his declaration, Bamieh
did not mention the email warning.
              The People contend the trial court found Bamieh's claim of surprise was not
credible and that the default was not the result of counsel's mistake or any of the grounds
mentioned in section 473, subdivision (b). Instead, they suggest the court found it was
the result of a deliberate litigation decision.
              In their opposition to the motion to vacate, the People claimed Thompson's
"counsel knowingly allowed the defaults to be taken as part and parcel of defendants'
strategy of delaying." They said defendants engaged in a pattern of ignoring "court
orders," refusing "to participate in discovery" and preventing this case from "being at
issue." The People said, "Somehow the defendants have managed to avoid answering the
complaint . . . for seven . . . months."
              Thompson did not request written fact findings from the trial court. He did
not produce a reporter's transcript of the hearing on the motion to vacate. He did not
obtain a settled statement or an agreed statement about what occurred at the hearing.


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Consequently, we do not know what showing or representations the parties made at that
hearing or the trial court's oral findings or responses to those claims.
                In their opposition to the motion, the People also raised specific challenges
to counsel's credibility and the sufficiency of his declaration. They claimed the motion to
vacate had to be denied because the declaration submitted with the motion was not signed
by Bamieh. Bamieh subsequently submitted a signed declaration after the People had
filed their opposition. The People made a number of evidentiary objections to his
declaration. On appeal, Thompson does not discuss whether those objections were
sustained or if Bamieh's declaration was rejected on procedural grounds, the merits, or on
both grounds.
                The People claim: 1) Bamieh did not explain how a bankruptcy
appointment order was relevant for Thompson because he was not the defendant who
filed bankruptcy, 2) Bamieh did not show that anything prevented him from answering
for Thompson, and 3) he was representing three defendants, but his declaration did not
state facts about Thompson and "did not make a sufficient showing of a claim of fault
with regard to appellant." Thompson elected not to file an appellant's reply brief. He
consequently did not respond to these issues, nor has he shown why they are not relevant
in determining whether counsel's actions fell within section 473, subdivision (b).
                Where the parties dispute the facts and disagree about such issues as
causation and credibility, appellate review is hampered by the lack of a transcript and the
absence of a record of the trial court's findings. Appellant has a duty to present a
complete record on appeal. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528,
1532.) "'A judgment or order of the lower court is presumed correct. All intendments
and presumptions are indulged to support it on matters as to which the record is silent[.]'"
(Ibid.)
                Because of the incomplete record here, Thompson is not in a position to
challenge the People's claims about the court's fact findings and credibility
determinations. We may not presume error based on an incomplete record. (Null v. City
of Los Angeles, supra, 206 Cal.App.3d at p. 1532.)


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             The judgment is affirmed. Costs on appeal are awarded to respondent.
             NOT TO BE PUBLISHED.




                                       GILBERT, P. J.
We concur:



             YEGAN, J.



             PERREN, J.




                                          7
                              Vincent J. O'Neill, Jr., Judge

                           Superior Court County of Ventura
                          ______________________________


             Law Office of Brian Nomi, Brian Nomi for Defendant and Appellant.
             Gregory D. Totten, Ventura County District Attorney, Lisa O. Lyytikainen,
Senior Deputy District Attorney, for Plaintiff and Respondent.
