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Filed 4/20/15 Sierra v. Kremer CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION FIVE

REGULO SIERRA,

Plaintiff, Cross-defendant and

Appellant,

v.

STEVEN KREMER et al.,

Defendants, Cross-complainants

and Respondents.

 A140807

 (San Francisco City and County

 Super. Ct. No. CGC-11-514122)

Appellant Regulo Sierra sued respondents Steven Kremer, Sandra Kremer and 

Katalina Dresner (collectively Respondents), for “Elderly Abuse, Fraud.” Respondents 

cross-complained against Sierra for breach of a settlement agreement and general release

(Settlement) executed by Sierra in earlier litigation. The trial court sustained a demurrer 

to Sierra’s second amended complaint without leave to amend, denied his motion for 

reconsideration, and dismissed the complaint. Sierra failed to appear for trial on the 

cross-complaint, and an uncontested court trial was held. Judgment was awarded to 

Respondents. Sierra challenges the judgment’s validity and contends the trial court 

erroneously denied his informal request for a continuance. We affirm.

I. BACKGROUND

We summarize the convoluted factual history of this litigation for context and in 

an attempt to identify what is at issue. We do so with some difficulty because Sierra cites 

to virtually nothing in the record other than his own trial court pleadings (without 
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identifying where in the record they may be located), and he attempts to present questions 

that either are not appealable or were never raised below.

Sierra’s Pleadings

The genesis of the present litigation appears to be a June 2008 complaint filed by 

Sierra (case No. CGC-08-476613)1against Respondents and against Steven Kremer as 

the administrator of the estate of Vivian Barrett. The gist of the complaint was that Sierra 

had served as a personal and financial assistant to Barrett, and that she had promised to 

leave him at least $2 million in municipal bonds upon her death in consideration of his 

services.

2

In December 2008, Sierra, represented by counsel, entered into the Settlement 

resolving the litigation in consideration of payment of $58,000 “in full and final 

satisfaction and discharge of all of Sierra’s claims, known or unknown . . . .” The 

Settlement included a release of Respondents “from and against any and all claims, 

causes of action, liabilities, duties, suits, fees, costs and damages which . . . were set forth 

in or could have been set forth” in the complaint and creditor’s claim. The consideration 

was paid, and the complaint was dismissed with prejudice.

Notwithstanding the Settlement, Sierra filed a pro se action in March 2010 (case 

No. CGC-10-497564).3 That complaint appeared to be a duplicate of Sierra’s original 

dismissed complaint, with his name substituted as counsel. Respondents’ demurrer was 

sustained without leave to amend in July 2010, on grounds of res judicata.

 

1 All referenced trial court cases were filed in the Superior Court of the City and 

County of San Francisco.

2

Sierra also filed a creditor’s claim against Barrett’s estate seeking $200,000 as 

the reasonable value of services provided to Barrett during her lifetime.

3 Respondents cite in their brief several attempts by Sierra (either directly or 

through others) to assert claims against Barrett’s estate or against Steven Kremer as 

administrator following the Settlement. They also cite to documents included in requests 

for judicial notice in the trial court, but no record evidence is provided that the court ever 

granted those requests or that the court otherwise considered the documents. Thus, we 

only take judicial notice of relevant documents within the clerk’s transcript which have 

been file stamped, indicating that they are official records of the superior court. (Evid. 

Code, § 452, subd. (d)(1).)
3

The pro se complaint underlying this appeal was filed in September 2011 (case 

No. CGC-11-514122). It is captioned “ELDERLY ABUSE, FRAUD Re: estate OF

Vivian Barrett, Interference with Business and personal Affairs for financial Gain” and 

alleges, inter alia, that Respondents breached promises made to him by Barrett to deliver 

municipal bonds and personal property upon her death, and thereby interfered with his 

business and financial affairs. The following November, the trial court (Hon. Harold 

Kahn) sustained Respondents’ demurrer, with leave to amend “if he can do so in good 

faith, to allege claims that are not time-barred and that were not and could not have been 

a part of the prior lawsuits.” About 10 days later, Sierra filed a “First Amended 

Complaint for Damages to Elderly Person Disable [sic], and Intentional Infliction of 

Emotional Distress.” This pleading alleged, without explanation, that Sierra’s complaint 

was not time-barred and that he suffered pain and mental anguish due to the “small 

amount” of the Settlement. Respondents again demurred and filed a motion to strike the 

pleading. In February 2012, Judge Kahn sustained the demurrer, with 30 days leave to 

amend, finding that Sierra failed to plead any facts to show that his claims were not timebarred and were not and could not have been part of the prior lawsuits.

Sierra filed a second amended complaint in March 2012, seeking damages for 

fraud, elder abuse, “unconscionability,” intentional infliction of emotional distress, and 

“accounting.” Respondents again demurred. Judge Kahn, after hearing the following 

May, sustained the demurrer without leave to amend, finding that Sierra “ha[d] not 

alleged, nor does it appear that he can allege, ultimate facts showing that the five causes 

of action in the Second Amended Complaint are not barred by the applicable statues of 

limitations or by res judicata.”

Sierra filed a motion for reconsideration. His motion included a challenge to

Judge Kahn under Code of Civil Procedure section 170.6, and also sought to add Judge 

Kahn as a defendant in the action. The matter was referred to Judge Curtis Karnow for 

hearing on the motions. Sierra did not appear at a hearing on July 26, 2012, to contest 

tentative rulings by Judge Karnow denying the motions; however, Patricia Hewlett, a 

nonattorney, and Michael Murawski, an unlicensed attorney, attempted to appear on 
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Sierra’s behalf. Hewlett asked to postpone the hearing because Sierra was “very sick.” 

The court declined to continue the matter and entered orders consistent with the tentative 

ruling.4 The court found that Sierra failed to present any new law or facts upon which to 

base a reconsideration motion, and that the motion did not comply with Code of Civil 

Procedure section 1008.5 An order was entered dismissing Sierra’s second amended 

complaint on that date.

Following the dismissal, Sierra contended that Raymond Burke, an attorney 

specially appearing for Respondents at the July 26, 2012 hearing had orally agreed to a 

settlement with Sierra for $475,000. Sierra filed a motion to enforce settlement. Judge 

Karnow denied the motion in September, finding that the requirements of Code of Civil 

Procedure section 664.6 had not been met. Sierra’s motion for reconsideration was 

denied by Judge Karnow on December 21, 2012.

Sierra appealed from the December 21, 2012 order (appeal No. A137743), which

was later dismissed on the basis that a ruling on a motion for reconsideration is not an 

appealable order. On March 12, 2013, Sierra filed a notice of appeal from the 

September 2012 order denying his motion to enforce settlement. That appeal 

(No. A138227) was dismissed on the basis that the order was not appealable and in any 

event untimely. No appeal was taken from the July 26, 2012 judgment dismissing 

Sierra’s second amended complaint.

Respondents’ Cross-Complaint

Respondents had filed a cross-complaint against Sierra in October 2011, claiming 

damages for breach of the Settlement. Sierra failed to answer, and his default was 

entered in August 2012. In February 2013, Respondents stipulated to set aside the 

default, were granted leave to file an amended cross-complaint, and filed their first 

amended cross-complaint (FACC), pleading a single cause of action for breach of 

contract. The Settlement was attached, and incorporated by reference, to the FACC. The 

 

4 Hewlett told the court that “we’re filing criminal charges against you.”

5

The court also found the challenge to Judge Kahn to be untimely, and that 

judicial immunity barred any claim against Judge Kahn.
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FACC sought compensatory damages for $58,000 (the amount of consideration paid to 

Sierra for the Settlement) and $1,720 (for filing fees paid by Respondents). Sierra 

demurred and moved to strike the complaint. In his general motion to strike, Sierra 

alleged in a single paragraph that the FACC was a SLAPP6pleading. The demurrer was 

overruled and the motion was denied on May 8, 2013 (Hon. Peter Busch). Judge Busch 

held that, to the extent that Sierra was presenting an anti-SLAPP motion under Code of 

Civil Procedure section 425.16, he presented no law or evidence to show that the FACC 

was directed against protected activity. Sierra was given until June 10, 2013, to file an 

answer. The register of actions indicates that Sierra filed an answer to the FACC on 

June 7, 2013.7

By case management order dated June 13, 2013 (Order), the court gave notice to 

the parties that the matter was set for trial on January 6, 2014. As of that date, the only 

operative pleading was the FACC. The Order advised the parties that any objection to 

the trial date was required to be presented at an objection hearing on June 26, 2013, at 

10:30 a.m. in Department 610, and thereafter any request for continuance of the trial date 

must be submitted to the “Presiding Judge in Department 206.” The register of actions

reflects no objection to the Order. An unsuccessful settlement conference was held on 

December 16, 2013; on December 24, Respondents filed and served a request for Sierra’s 

attendance at trial. On January 2, 2014, Sierra filed a motion in limine, including a list of 

his proposed exhibits, and requested a jury trial. Sierra failed to post jury fees, and the 

matter was assigned to the court’s short-cause calendar. On January 6, 2014, the matter 

was called on the master calendar, and Sierra failed to appear. Presiding Judge 

Cynthia M. Lee assigned the case to Judge Paul Alvarado for trial. Respondents 

submitted a trial brief, which is not in the record provided by Sierra. Judge Alvarado 

entered judgment for Respondents consistent with the prayer in the FACC, awarding 

 

6

“SLAPP is an acronym for ‘strategic lawsuit against public participation.’ ” 

(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)

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The answer is not included within the record designated by Sierra. In his 

opening brief, Sierra says that he filed a general denial.
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compensatory damages in the total amount of $59,720.00. A notice of entry of judgment 

was served on January 8, 2014. Sierra filed a timely notice of appeal on January 15, 

2014.

II. DISCUSSION

We once again find ourselves attempting to make sense of pro se pleadings which, 

while obviously filed in this case with some level of professional assistance, largely 

ignore the requirements of the California Rules of Court. As noted ante, Sierra’s record 

references consist primarily of quotations from portions of his own pleadings (without 

page citations), and his citations to the trial court record make almost no reference to any 

location in that record where documents can be found or are simply annotated as “See 

Register.” It is not the responsibility of this court to search through the record seeking 

evidence in support of a party’s position. (Williams v. Williams (1971) 14 Cal.App.3d 

560, 565.)

From what we can glean from the record provided, the first obvious fact is that no 

cognizable issues are before us relating to dismissal of Sierra’s second amended 

complaint. The only timely appeal was taken from the “judgment after court trial,” i.e.,

the judgment on Respondents’ FACC entered by Judge Alvarado on January 6, 2014. 

The second is that Sierra has forfeited most, if not all, of his arguments on appeal, by

failing to apply cited legal principles to the particular facts of the FACC and to support 

his arguments with citations to specific evidence in the record. (See Guthrey v. State of 

California (1998) 63 Cal.App.4th 1108, 1115–1116; Cal. Rules of Court, 

rule 8.204(a)(1)(C).)

We reiterate that Sierra is not exempt from the rules because he has chosen to 

represent himself on appeal in propria persona. (Nwosu v. Uba (2004) 122 Cal.App.4th 

1229, 1246; McComber v. Wells (1999) 72 Cal.App.4th 512, 522–523.) “[S]uch a party 

is to be treated like any other party and is entitled to the same, but no greater 

consideration than other litigants and attorneys. [Citation.]” (Barton v. New United 

Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)
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A. Challenges to Judgment on Respondents’ FACC

Even if were we to ignore the self-evident defects in Sierra’s briefing, we would 

find that he has failed to overcome the basic hurdle that “an appealed judgment is 

presumed correct, and appellant bears the burden of overcoming the presumption of 

correctness. [Citation.]” (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649–

650.) “[T]he party asserting trial court error may not . . . rest on the bare assertion of 

error but must present argument and legal authority on each point raised. [Citation.]” 

(Id. at p. 649.) Error must be affirmatively shown. (People v. Giordano (2007) 

42 Cal.4th 644, 666.)

Sierra’s opening brief appears in large part to be a regurgitation of the allegations 

of his original and amended complaints, and of his demurrer and motion to strike the 

FACC. He also attempts to raise additional issues, such as a claim of violation of the

Rosenthal Fair Debt Collection Practices Act (RFDCPA; Civ. Code, § 1788 et seq.), that

do not appear to have been presented to the trial court. He provides little in the way of 

reasoned argument or legal analysis, citing biblical quotations or legal maxims. To the 

extent Sierra cites legal authority, he does not explain how that authority is applicable to 

the circumstances of this case. “To demonstrate error, appellant must present meaningful 

legal analysis supported by citations to authority and citations to facts in the record that 

support the claim of error. [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 408; see 

also Cal. Rules of Court, rule 8.204(a)(1)(C).)

Sierra spends most of his briefing challenging the legal sufficiency of the FACC. 

He seems not to appreciate that we are reviewing the judgment after a court trial before 

Judge Alvarado, and not the correctness of Judge Busch’s denial of Sierra’s demurrer and 

motion to strike months earlier. Under the general heading of “Mistakes of Fact and 

Law,” Sierra contends the FACC is (1) financial elder abuse because it caused him undue 

financial strain; (2) a SLAPP; (3) moot (“because it does not present any actual 

controversy”); (4) time-barred (because it was filed more than four years after the 

Settlement); (5) unconscionable, unripe, and does not state facts sufficient to state a cause 

of action (because it is based on the Settlement); and (6) does not support the damages 
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claimed. He further contends that Respondents “conceded financial elder abuse, 

mootness, unconscionability and unripeness” by not addressing those issues in response 

to his motion to strike in the trial court, and that Respondents, by pursuing the FACC, 

violated the RFDCPA. Sierra supports none of his contentions with reasoned legal 

argument. When an appellant raises an issue “but fails to support it with reasoned 

argument and citations to authority, we treat the point as waived. [Citations.]” (Badie v. 

Bank of America (1998) 67 Cal.App.4th 779, 784–785; Guthrey v. State of California, 

supra, 63 Cal.App.4th at pp. 1115–1116 [claim on appeal may be denied if unsupported 

by argument applying legal principles to particular facts of the case].)

Moreover, in challenging the judgment against him, Sierra provides none of the 

briefing and evidence submitted to the trial court by Respondents. In our review, we 

must presume that the record contains evidence to support every finding of fact, unless an 

appellant affirmatively shows otherwise. (Huong Que, Inc. v Luu (2007) 

150 Cal.App.4th 400, 409.) “ ‘ “[I]f any matters could have been presented to the court 

below which would have authorized the order complained of, it will be presumed that 

such matters were presented.” ’ [Citation.]” (Foust v. San Jose Construction Co., Inc.

(2011) 198 Cal.App.4th 181, 187.) Failure to provide an adequate record for review 

means that Sierra does not begin to meet his burden of establishing that the trial court 

erred in finding that he breached the terms of the Settlement, and that Respondents 

suffered damages as a result.

B. Denial of Continuance and Due Process Claim

Sierra’s notice of appeal cites as an “Other” ground of appeal that “Plaintiff did 

not appear in court due to a medical condition.” In his opening brief, he alleges that he 

“could not attend the January 6, 2014 jury trial due to a medical condition as indicated in 

a letter provided to Judge Alvarado and Respondents but Judge Alvarado proceeded to 

trial without Appellant present and ruled against Appellant.” He otherwise makes no 

mention of the issue in the opening brief. Only in his reply brief does Sierra argue that 

the court abused its discretion in proceeding to trial in his absence. We do not consider 
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arguments raised for the first time in a reply brief. (Julian v. Hartford Underwriters Ins. 

Co. (2005) 35 Cal.4th 747, 761, fn. 4.)

In a rambling and generally incoherent argument in his opening brief, Sierra

contends that the trial court “violated the Due Process Clause,” but does not suggest how 

the court did so. Even if we were willing to assume that Sierra’s abuse of discretion 

argument is somewhere camouflaged within this undifferentiated morass, the claim 

would still fail.

First, Sierra again fails to provide an adequate record for review. He does not 

provide us with the “letter” purportedly sent to Judge Alvarado, nor does he indicate 

when and how it was supposedly communicated to the court. He does not provide court 

minutes of the hearing, and no such communication is mentioned in the register of 

actions or reporter’s transcript.8“[I]f the record is inadequate for meaningful review, the 

appellant defaults and the decision of the trial court should be affirmed. [Citations.]”

(Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)

Second, Sierra fails to establish any abuse of the trial court’s discretion. If proper 

notice of the trial has been given, either party may bring an issue to trial and proceed to 

judgment in the absence of the other party. (Code Civ. Proc., § 594;

9

In re Marriage of 

Goddard (2004) 33 Cal.4th 49, 58.) The required notice usually must be given at least 

 

8

The only item we find in any of the materials filed with this court is an “exhibit” 

improperly attached to Sierra’s civil case information statement (Judicial Council Forms, 

form APP-004). The “exhibit” is a preprinted form with the caption “Arcilla Medical 

Clinic” dated January 3, 2014, indicating that Sierra would be absent from work from 

January 4, 2014, through January 14, 2014. The reason is listed as “Medical Condition,”

and no other explanation is included. Nothing indicates that this document is the “letter” 

Sierra references, or that it was ever otherwise submitted to the trial court.

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“In superior courts either party may bring an issue to trial or to a hearing, and, in 

the absence of the adverse party, unless the court, for good cause, otherwise directs, may 

proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the 

case may require; provided, however, if the issue to be tried is an issue of fact, proof shall 

first be made to the satisfaction of the court that the adverse party has had 15 days’ notice 

of such trial . . . . If the adverse party has served notice of trial upon the party seeking the 

dismissal, verdict, or judgment at least five days prior to the trial, the adverse party shall 

be deemed to have had notice.” (Code Civ. Proc., § 594, subd. (a).)
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15 days before the date set for trial. (Code Civ. Proc., § 594, subd. (a).) Sierra

unquestionably had such notice and did not object to the trial date when that notice was 

given. Continuance of a trial, once set, is disfavored and requires an affirmative showing 

of good cause. (County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 

72 Cal.App.3d 776, 779; Young v. Redman (1976) 55 Cal.App.3d 827, 831–832; 

Cal. Rules of Court, rule 3.1332(c).) Clearly no motion to continue was filed, as required 

by California Rules of Court, rule 3.1332(b),

10 and no supporting declarations were 

submitted to explain what “medical condition” prevented Sierra from attending trial.

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If a request to continue trial was in fact made, and if it was denied, the court would have 

been entirely justified in doing so. Further, in the absence of a record, we would not 

disturb the implied finding of the trial court that Sierra had failed affirmatively to show 

good cause for the continuance in exercising its discretion to deny a motion on the 

morning of trial. (See In re Marriage of Teegarden (1986) 181 Cal.App.3d 401, 407.)

III. DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

 

10 See also the Superior Court of the City and County of San Francisco, Local 

Rules, rule 6.0(B): “Continuances. The Presiding Judge determines motions for 

continuance of a case of a case set for trial on the trial calendar . . . . These motions must 

be accompanied by supporting declarations. No motion for continuance of a trial date 

may be made or heard in any other department. The Presiding Judge on Stipulation of

the parties may continue trial to a date convenient to the Court by an ex parte application. 

Parties seeking a stipulated continuance of the trial date must submit (1) an ex parte 

application establishing good cause for the continuance, including a declaration there 

have been no prior continuances or stating the number of prior continuances, the reason 

for those, and the party seeking those, (2) a stipulation by all parties, and (3) a proposed 

order. No continuance will be granted except for good cause shown, such as serious 

accident, illness or death, or unanticipated unavailability of parties or witnesses. Without 

a showing of good cause, no case will be continued on the trial calendar on the ground 

that a date for a hearing in the Law and Motion Department or other department has not

been scheduled or heard prior to the trial date.”

11 Nor does Sierra offer any explanation here.
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_________________________

BRUINIERS, J.

WE CONCUR:

_________________________

SIMONS, Acting P. J.

_________________________

NEEDHAM, J.