Filed 4/11/13 Clay v. AT&T West, Inc. CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----

JEROME A. CLAY, JR.,                                                                         C069489

                   Plaintiff and Appellant,                                       (Super. Ct. No. 39-2010-
                                                                                  00243385-CU-WT-STK)
         v.

AT&T WEST, INC.,

                   Defendant and Respondent.




         Plaintiff Jerome A. Clay, Jr., sued defendant AT&T West, Inc., alleging wrongful
termination and infliction of emotional distress.1 AT&T West defaulted on the
complaint; however, the trial court granted AT&T West‟s motion to set aside the default.
Later, the court sustained AT&T West‟s demurrer to Clay‟s complaint and dismissed the
action. Representing himself, Clay appeals, contending in his headings that the trial court
improperly sustained the demurrer but arguing in the text only that the court abused its
discretion in setting aside AT&T West‟s default.



1      Defendant asserted in the trial court, through counsel, that its true name is Pacific
Bell Telephone Company. However, following the caption in the case, we refer to
defendant as AT&T West.

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       We conclude that (1) the granting of the motion to set aside the default is
reviewable on appeal after the dismissal, (2) Clay‟s opening brief is deficient because it
fails to rely solely on matters in the record on appeal, (3) Clay has forfeited any argument
about whether the trial court properly sustained AT&T West‟s demurrer, and (4) the
record does not support Clay‟s argument that the trial court abused its discretion in
granting AT&T West‟s motion to set aside the default.
       We therefore affirm.
                                     BACKGROUND
       Soon after filing his original complaint, Clay filed an ex parte application for a
temporary restraining order to prevent AT&T West from transferring Clay from his
employment in Stockton to another job location, apparently in Fresno. He claimed that a
transfer would inhibit his ability to retain custody of his daughter and result in not being
able to make mortgage payments on his house in Stockton. AT&T West, represented by
attorney Glen Turner, opposed the application, and the trial court denied it.
       AT&T West failed to file a timely answer to the complaint, so Clay requested
entry of default, which the court clerk entered. The court held a hearing on the default
judgment but denied the request for default judgment because the statement of damages
had not been served on AT&T West.
       AT&T West filed an ex parte application for relief from default. In support of the
application, attorney Turner filed a declaration stating that he was retained to represent
AT&T West. When the trial court denied the application for a temporary restraining
order, Clay said to attorney Turner, “I just got the decision. Looks like I‟m done here.”
Based on that statement and his belief that the complaint had not been served, Turner
believed Clay was not pursuing the action further. Within days of learning that AT&T
West‟s default had been entered, Turner filed the ex parte application for relief from
default.
       The trial court granted AT&T West‟s motion and set aside the default.

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       Thereafter, AT&T West demurred to the complaint, and the trial court eventually
sustained the demurrer without leave to amend.
                                             I
                                       Reviewability
       AT&T West claims that the granting of the motion to set aside default is not
reviewable on appeal from the judgment of dismissal. It cites Code of Civil Procedure
section 906, which provides for review of intermediate matters after judgment. AT&T
West contends the granting of the motion to set aside default is not reviewable because it
did not necessarily or substantially affect the judgment.2 We disagree. If the trial court
had not granted the motion to set aside default, Clay would have prevailed. Therefore,
the granting of the motion necessarily and substantially affected the judgment.


                                             II
              Statements Concerning Facts and Procedure in Opening Brief
       We acknowledge that Clay is representing himself in connection with this appeal
and therefore has not had the formal legal training and experience that would be
beneficial in advocating his position. The rules and requirements of civil procedure,


2       Code of Civil Procedure section 906 states: “Upon an appeal pursuant to Section
904.1 or 904.2, the reviewing court may review the verdict or decision and any
intermediate ruling, proceeding, order or decision which involves the merits or
necessarily affects the judgment or order appealed from or which substantially affects the
rights of a party, including, on any appeal from the judgment, any order on motion for a
new trial, and may affirm, reverse or modify any judgment or order appealed from and
may direct the proper judgment or order to be entered, and may, if necessary or proper,
direct a new trial or further proceedings to be had. The respondent, or party in whose
favor the judgment was given, may, without appealing from such judgment, request the
reviewing court to and it may review any of the foregoing matters for the purpose of
determining whether or not the appellant was prejudiced by the error or errors upon
which he relies for reversal or modification of the judgment from which the appeal is
taken. The provisions of this section do not authorize the reviewing court to review any
decision or order from which an appeal might have been taken.”

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however, apply to self-represented parties the same as they do to parties represented by
attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Thus, a self-
represented litigant “ „is entitled to the same, but no greater consideration than other
litigants and attorneys. [Citation.]‟ [Citation.]” (Nwosu v. Uba (2004) 122 Cal.App.4th
1229, 1247.)
       Clay‟s opening brief on appeal fails in several respects to present reasoned
argument supported by appropriate citations to the record and authority. The California
Rules of Court require the appellant (Clay) to: (1) present each point separately in the
opening brief under an appropriate heading, showing the nature of the action to be
presented and the point to be made (Cal. Rules of Court, rule 8.204(a)(1)(B)); (2) provide
an adequate record that affirmatively demonstrates error (Cal. Rules of Court, rule 8.120
et seq.); (3) support all appellate arguments with legal analysis and appropriate citations
to the material facts in the record (Cal. Rules of Court, rule 8.204(a)(1)(C)); and (4) state
the nature of the action, the relief sought, and the judgment appealed from, showing how
the error caused a miscarriage of justice (Cal. Rules of Court, rule 8.204(a)(2)(A); Cal.
Const., art. VI, § 13). For the most part, Clay‟s brief fails to comply with these
requirements. When an appellant fails to comply with any of these rules, the contentions
in the brief are forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); see Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1295-1296; City of Lincoln v. Barringer (2002) 102 Cal.App.4th
1211, 1239-1240.)
       In his opening brief, Clay makes numerous assertions concerning the facts and the
proceedings in the trial court. However, he fails to provide record citations for most of
those assertions. Indeed, it appears that most of those assertions cannot be supported by
citation to the record on appeal. Clay makes claims about what happened leading up to
AT&T West‟s default and later motion to set aside the default. We need not recite these
claims here because, to the extent they are not supported by the record, they are without



                                              4
any persuasive value on appeal. We therefore disregard all factual and procedural claims
made by Clay without citation to the record.3
       Based upon the noncompliant nature of Clay‟s brief, it would be appropriate for
us to entirely disregard his contentions because, for the most part, they have not been
(1) clearly presented, (2) supported with proper citations to the record, or (3) supported
with citations to applicable legal authority. In the interests of disposing of the merits of
the case fairly, however, we believe it reasonable to address below the arguments we
have identified in Clay‟s opening brief.
                                             III
                                   Sustaining of Demurrer
       As noted above, Clay states in the table of contents and headings that the trial
court erred by sustaining AT&T West‟s demurrer but he does not make that argument in
the text of the opening brief. Accordingly, Clay has forfeited any argument that the trial
court erred by sustaining the demurrer.
                                             IV
                          Granting of Motion to Set Aside Default
       Clay contends that the trial court (1) improperly granted the motion to set aside
default under Code of Civil Procedure section 473, subdivision (b) and (2) denied Clay
due process. Neither contention has merit.
       A.     Propriety of Order
       Whether to set aside a default is within the sound discretion of the trial court.
(Romer, O'Connor & Co. v. Huffman (1959) 171 Cal.App.2d 342, 347.) “[G]enerally,




3      Clay appended to his opening brief a document he claims he tried to file in the trial
court in opposition to AT&T West‟s motion to set aside the default. This document is
not a part of the record on appeal and is not a proper attachment under the Rules of Court.
(Cal. Rules of Court, rule 8.204(d).) We therefore disregard it.

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since the code section allowing such a motion, Code of Civil Procedure, section 473, is a
remedial measure and to be liberally construed [citations], any doubts existing as to the
propriety of the trial court‟s action will be resolved in favor of a hearing on the merits.
[Citations.] [¶] Further, as in any other case, the trial court‟s determination of the facts
as found from the affidavits of the parties will be conclusive upon the appellate court
[citation], but if the facts as stated in the moving party‟s affidavit do not constitute valid
grounds for the relief sought, the trial court‟s action in setting aside the default will be
reversed [citations]. Hence the question narrows to whether or not the facts stated in the
affidavit . . . show reasonable grounds for setting aside the default judgment.” (Romer,
O'Connor & Co. v. Huffman, supra, at p. 347.)
       “The court may, upon any terms as may be just, relieve a party or his or her legal
representative from a judgment, dismissal, order, or other proceeding taken against him
or her through his or her mistake, inadvertence, surprise, or excusable neglect. . . .
Notwithstanding any other requirements of this section, the 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, and which will result in entry of a default judgment . . .
unless the court finds that the default or dismissal was not in fact caused by the attorney‟s
mistake, inadvertence, surprise, or neglect. . . .” (Code Civ. Proc., § 473, subd. (b).)
       Here, AT&T West‟s attorney, Glen Turner , filed an affidavit attesting to the
attorney‟s mistake in believing that Clay was no longer pursuing the action and that the
complaint had not been served. That affidavit was sufficient to support the trial court‟s
order setting aside the default because it explained that AT&T West‟s default was caused
by its attorney‟s mistake.
       Clay, however, attempts to controvert the contents of attorney Turner‟s affidavit
by asserting that there were other facts and that Clay “was prepared to submit a

                                               6
declaration” to that effect. As noted above, we do not grant relief on appeal based on
matters not appearing in the record. Therefore, we will not consider Clay‟s allegations of
facts not found in the record.
       Accordingly, the record does not support Clay‟s contention that the trial court
erred in granting relief from default based on Code of Civil Procedure section 473,
subdivision (b).
       B.     Due Process
       Clay asserts the trial courted violated his due process rights by (1) allowing the
hearing on the ex parte application to set aside default go forward even though AT&T
West had served the application on Clay only moments before the hearing, (2) ordering
the reporter to stop transcribing the proceedings, (3) denying Clay‟s request for a
continuance, and (4) refusing to allow a proper record to be made of the proceedings.
              1.     Service of Application
       “Parties appearing at the ex parte hearing must serve the ex parte application or
any written opposition on all other appearing parties at the first reasonable opportunity.
Absent exceptional circumstances, no hearing may be conducted unless such service has
been made.” (Cal. Rules of Court, rule 3.1206.)
       Attorney Turner telephoned Clay on November 29, 2012, at 9:45 a.m., and told
Clay that there would be a hearing on AT&T West‟s ex parte application to set aside the
default at 9:15 a.m. the next day. On November 30, attorney Turner personally served
the application on Clay. According to the minute order, the court held a hearing on the
ex parte application at 9:15 a.m. with Clay present. It heard oral arguments and granted
the application.
       Clay claims that attorney Turner refused to fax the application to Clay on
November 29, and, based on this claim, contends that attorney Turner did not serve the ex
parte application at the first reasonable opportunity. Nothing in the record establishes
that attorney Turner refused to fax the application to Clay. Furthermore, nothing in the

                                              7
record establishes that Clay made this claim in the hearing before the trial court.
Accordingly, the contention is without merit.
              2.     Order to Stop Transcribing
       Clay claims, without citation to the record on appeal, that the trial court ordered
the court reporter to stop transcribing the hearing on the ex parte application for relief
from default. Based solely on this unsupported claim on appeal, Clay contends that the
trial court denied him due process. While the record reflects that there was no court
reporter for the hearing, it does not establish why there was no court reporter or that Clay
requested a court reporter. Furthermore, Clay has made no attempt to use the alternative
means for creating a record afforded by the rules of court. (See Cal. Rules of Court, rules
8.134, 8.137, 8.140.) Therefore, his claim that the trial court ordered the court reporter to
stop transcribing is without support and the due process contention is without merit.
              3.     Denial of Motion for Continuance
       Clay asserts that he requested a continuance of the hearing on the ex parte
application to set aside default so that he could file an opposition. There is no record of
such request; therefore, Clay‟s contention that the trial court violated his due process
rights by denying the request is without merit.
              4.     Refusal to Allow Record of Proceedings
       Finally, Clay asserts that he was denied his right to present evidence. Again, the
record is insufficient to sustain this assertion. According to the record, Clay appeared at
the hearing and argued against the ex parte application. Nothing in the record establishes
that he was denied any right to present evidence. Without being given any support in the
record for the contention, we can conclude only that no such evidence exists. The
contention is therefore without merit.
       Clay‟s frustration with the process in the trial court is evident in the opening brief.
However, we are bound by the rules of appellate review. Because the record on appeal is



                                              8
inadequate to sustain Clay‟s contentions, the appeal has no merit and the judgment of
dismissal must be affirmed.
                                     DISPOSITION
       The judgment of dismissal is affirmed. AT&T West is awarded its costs on
appeal. (Cal. Rules of Court, rule 8.278(a).)



                                         NICHOLSON         , Acting P. J.



We concur:



      MURRAY           , J.



      HOCH            , J.




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