Opinion
B230086
09-27-2011
BENJAMIN CASTANEDA, Plaintiff and Appellant, v. VIRGINIA SURETY CO., INC., Defendant and Respondent.
Law Offices of Timothy J. Donahue and Timothy J. Donahue for Plaintiff and Appellant. Branson, Brinkop, Griffith & Strong, Harry A. Griffith and John R. Campo for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
(Los Angeles County Super. Ct. No. BC417963)
APPEAL from a judgment of the Superior Court of Los Angeles County, Mark V. Mooney, Judge. Affirmed.
Law Offices of Timothy J. Donahue and Timothy J. Donahue for Plaintiff and Appellant.
Branson, Brinkop, Griffith & Strong, Harry A. Griffith and John R. Campo for Defendant and Respondent.
Benjamin Castaneda (appellant) sued Virginia Surety Co., Inc. (Virginia) for three causes of action. After the third cause of action was dismissed, Virginia moved for summary judgment as to the remaining two causes of action. The trial court granted summary judgment. Concluding that appellant has failed to (1) provide an adequate record on appeal and (2) identify any error made by the trial court, we affirm.
PROCEDURAL BACKGROUND
Appellant sued Virginia for: (1) breach of contract; (2) bad faith breach of insurance policy; and (3) unfair business practices under Business and Professions Code section 17200. Virginia then filed a demurrer to the third cause of action and a motion to strike appellant's request for punitive damages. The trial court sustained the demurrer and dismissed the third cause of action, and granted Virginia's motion to strike. Following the demurrer, Virginia filed a motion for summary judgment as to the remaining two causes of action. The trial court granted Virginia's motion for summary judgment.
Judgment was entered accordingly. Appellant filed a timely notice of appeal.
CONTENTIONS ON APPEAL
Appellant contends that the trial court erred in dismissing the third cause of action and in granting Virginia's motion for summary judgment as to the remaining two causes of action. Appellant does not elaborate on how or why these were errors.
DISCUSSION
1. Appellant's Appendix Constitutes an Inadequate Record on Appeal
Appellant has chosen, pursuant to California Rules of Court, rule 8.120(a)(1), to provide us with his own appendix in lieu of a clerk's transcript. California Rules of Court, rule 8.124(b)(1), sets forth the required documents that must be included in the appendix, which includes those items required by California Rules of Court, rule 8.122(b). These required documents include: the notice of appeal (Cal. Rules of Court, rule 8.122(b)(1)(A)); the notice of election to proceed by means of an appellants' appendix (Cal. Rules of Court, rule 8.124(b)(1)(C)); and any other document filed or lodged with the superior court "that is necessary for proper consideration of the issues, including, for an appellant's appendix, any item that the appellant should reasonably assume the respondent will rely on" (Cal. Rules of Court, rule 8.124(b)(1)(B)).
" ' "A judgment or order of the lower court is presumed correct . . . 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." [Citations]' " (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 (Gee); see also Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 (Hernandez).) "Consequently, [appellant] has the burden of providing an adequate record. [Citation.]" (Hernandez, supra, 78 Cal.App.4th at p. 502.) " 'A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' [Citation.]" (Gee, supra, 99 Cal.App.4th at p. 1416.) In other words, "[w]here [appellant] fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him. [Citations.]" (Rancho Santa Fe Ass'n v. Dolan-King (2004) 115 Cal.App.4th 28, 46.)
Here, appellant's appendix fails to provide us with the required notice of appeal and the required notice of election. Further, appellant's appendix fails to include any of the relevant documents that were filed by Virginia in the trial court. This appeal is taken from the dismissal of appellant's first cause of action for unfair business practices under Business and Professions Code section 17200, but appellant's appendix does not include any of Virginia's moving papers or the demurrer. This appeal is also taken from the trial court's grant of summary judgment in favor of Virginia, but appellant's appendix does not include any of Virginia's moving papers or evidence. Because this is an appeal from the granting of a summary judgment and the sustaining of a demurrer, appellant should have reasonably assumed that Virginia would rely on those moving papers in this appeal. Without Virginia's moving papers, we cannot review the basis of the trial court's decision. Appellant has failed to carry his burden of providing an adequate record.
Appellant also has failed to serve a copy of his brief "on the Attorney General . . . and on the district attorney of the county in which the lower court action or proceeding was originally filed," which, because appellant is alleging "a violation of [California Business and Professions Code section 17200] . . . in any proceeding in . . . a state court of appeal," he was required to do under Business and Professions Code section 17209. (Cal. Bus. & Prof. Code § 17209.)
Virginia has submitted its own appendix, and has included the required documents that were omitted by appellant. The fact that Virginia has provided many of the necessary documents does not cure appellant's violation of the California Rules of Court, nor does it satisfy appellant's burden to provide this court with an adequate record on appeal. (See Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.)
2. Appellant Has Failed to Identify Any Error Made by The Trial Court
Even more fatal to his appeal, however, is the failure of the appellant to identify any error that the trial court allegedly made. Appellant argues that the trial court should not have granted summary judgment because there were factual disputes. Appellant also argues that the trial court should not have dismissed his third cause of action because the dismissal unfairly and improperly denied him the right to perform discovery and proceed. Appellant does not elaborate on these arguments any further. He does not explain the alleged factual disputes, nor does he explain how he was unfairly and improperly denied the right to perform discovery and proceed. Further, appellant does not cite to the record a single time throughout his four-and-a-half page brief in support of his arguments.
Because any judgment or order from the trial court is presumed correct and error must be affirmatively shown, appellant's failure to identify how the trial court erred along with his inadequate record leaves us with nothing to consider.
DISPOSITION
The judgment is affirmed. Virginia shall recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
KITCHING, J.