O.k., LLC v. Melka (2026)

Case details
Country
United States
Jurisdiction
California (CA)
Court
California Supreme Court
Decided
2026
Disposition
Affirmed
Majority
Baker (J.) (unanimous Court)
Filed 4/23/26 O.K. v. Melka CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 O.K., LLC, Plaintiff and Respondent, v. MARCELLE MELKA, Defendant and Appellant. B341146 (Los Angeles County Super. Ct. No. LC103261) APPEAL from a judgment of the Superior Court of Los Angeles County, Huey P. Cotton, Jr., Judge. Affirmed. Marcelle Melka, in pro. per., for Defendant and Appellant. Greenblatt Loveridge, Fredric J. Greenblatt, and Lisa L. Loveridge, for Plaintiff and Respondent.
2 Defendant and appellant Marcelle Melka (Melka) challenges the default judgment the trial court entered in this action after striking her answer to plaintiff and respondent O.K., LLC’s (O.K.’s) complaint. We consider whether the appellate record Melka provided is sufficient to reach her assignments of error, and whether Melka’s motion to augment the record should be granted when that motion was filed only after O.K. filed its respondent’s brief. I. BACKGROUND The appellate record that Melka designated, and that the superior court provided in response to that designation, is paltry: it consists solely of a 53-page clerk’s transcript (there is no reporter’s transcript or a substitute for such a transcript). That clerk’s transcript includes the case register list of filings in the trial court (spanning over nine years of litigation), the trial court’s amended judgment entered after Melka’s default, Melka’s notice of appeal, and Melka’s mostly blank record designation form. That’s it. Based on the case register of actions included in the appellate record, we know O.K. filed a motion for sanctions in November 2020, O.K. filed a motion for terminating sanctions in July 2021, and the court entered Melka’s default in September 2021. Melka noticed an appeal after her default was entered and this court issued its remittitur in January 2024. O.K. thereafter scheduled a default judgment prove-up hearing, O.K. filed two declarations and an appendix of exhibits in connection with that hearing, and the trial court entered a default judgment against Melka in September 2024. That judgment awards O.K.
3 $64,096.77 in damages, $198,635.13 in attorney fees, and $1,966.32 in costs. Melka noticed an appeal from this judgment. In light of the state of the record, her opening brief includes only a one-page statement of facts with few citations to the record. The brief advances three arguments for reversal of the default judgment against her: a claim that O.K.’s complaint does not allege a viable cause of action against her, a claim that the judgment against her is void because the record does not establish she was properly served with O.K.’s complaint, and a claim that the judgment should be vacated because the trial court entered a default judgment without requiring O.K. to provide evidence supporting the relief requested in its complaint. O.K.’s respondent’s brief highlights the deficits in the appellate record and asks this court to affirm on that basis. The respondent’s brief also complains that several of the cases cited by Melka in her opening brief either do not exist or do not support the claimed proposition for which they were cited—hallmarks, in respondent’s view, of use of an artificial intelligence tool to generate legal citations. The respondent’s brief also endeavors to rebut Melka’s arguments on the merits, insofar as permitted by the state of the record. Melka responded by filing a reply brief and a motion to augment the appellate record. Her motion seeks to augment the record with two items: O.K.’s original complaint and its first amended (and operative) complaint. A declaration authored by Melka that accompanies her motion to augment the record states she “did not realize the importance of the operative first amended complaint” when filing her record designation notice and first realized the “gravity of this omission” when reading the
4 respondent’s brief. She characterizes the omission as “mistake, inadvertence, surprise, and excusable neglect,” and she maintains O.K. would not be prejudiced if the motion to augment were granted.1 Melka’s reply brief argues the augmented record materials resolve any deficiencies in the appellate record and additionally reprises the same arguments made in her opening brief. II. DISCUSSION Melka, as the appellant, has the burden to provide an appellate record that allows her to carry her burden to affirmatively establish error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“‘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, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error’”]; see also Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (plur. opn. of Grodin, J.) [“It is well settled . . . that a party challenging a judgment has the burden of showing reversible error by an adequate record”].) The record Melka provided in this appeal, however, is woefully inadequate. As just explained, trial court judgments are 1 O.K. opposes Melka’s motion to augment the record and specifically disputes Melka’s assertion that it would not be prejudiced by granting the motion. O.K. explains it would be prejudiced because the motion to augment came only after it filed its respondent’s brief and because the augmented record materials Melka provides are not all of the materials necessary to properly evaluate the merits of her assignments of error.
5 presumed correct on appeal, and if all Melka has given us of substance in the record is the very judgment that we presume to be correct, the appeal necessarily fails. Melka contends granting her motion to augment the record would avoid this fatal problem, but the motion is not worthy of being granted. Under this court’s local rules and settled authority, her motion to augment the record—filed only after the respondent’s brief—was made far too late and at a stage where O.K. would obviously be prejudiced by granting the motion. (Ct. App., Second Dist., Local Rules, rule 2(b), When to file motion to augment [“Appellant should file requests for augmentation in one motion within 40 days of the filing of the record or the appointment of counsel. . . . Thereafter, motions to augment will not be granted except upon a showing of good cause for the delay”]; People v. Preslie (1977) 70 Cal.App.3d 486, 491-492; Russi v. Bank of America Nat. Trust & Savings Ass’n (1945) 69 Cal.App.2d 100, 102 [“‘neither [record] augmentation nor correction is a matter of right; they both may be denied for inexcusable neglect in preparing the record, for delay in presenting the application, or for other reasons’”].) Melka’s argument that good cause exists for the untimeliness of her motion to augment, i.e., that she did not realize it was important to include the operative complaint in the appellate record when challenging (among other things) whether that complaint states a proper claim against her, is unpersuasive. The motion to augment the record is therefore denied and the judgment shall accordingly stand.
6 DISPOSITION The judgment is affirmed. O.K. is awarded costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS BAKER, J. We concur: HOFFSTADT, P. J. KIM (D.), J.
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