Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. No. 08C0232 Steven D. Barnes, Judge.
Joseph Souza Martin, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Rochelle C. East, Senior Assistant Attorney General, Vickie P. Whitney and Ellen Y. Hung, Deputy Attorneys General, for Defendants and Respondents.
OPINION
Poochigian, J.
STATEMENT OF THE CASE
On January 17, 2008, the California Victim Compensation and Government Claims Board rejected appellant Joseph Martin’s claim No. G571728.
On June 20, 2008, appellant, an inmate at Corcoran State Prison, filed a complaint in Kings County Superior Court for medical malpractice, personal injury, and negligence arising from the treatment of his diabetes within the prison. Appellant named as defendants the respondents Thanit Hasadsri, M.D., William McGuiness, M.D., W.J. Greenough, M.D., V. Yamamoto, CDW-HCM, Licensed Vocational Nurses Gonzales and M. Tomayo, Senior Registered Nurse III C. Schutt, Facility Captain M. Hodges-Wilkins, and J. Kim, M.D. Appellant prayed for compensatory and punitive damages according to proof.
On the same date, a summons was issued and filed, and the action was assigned to the Honorable Peter Schultz, judge of the superior court, for case management purposes.
On August 18, 2008, proofs of service for defendants Hasadsri, McGuinness, Shutt, and Kim were filed with the superior court. Defendants Yamamoto, Gonzales, Greenough, Hodges-Wilkins, and Tomayo were not served.
On September 15, 2008, defendants moved to remove the action to United States District Court for the Eastern District of California because it alleged a federal question under Title 42 United States Code section 1983 (case No. 1:08-CV-01386-DLB).
On April 10, 2009, the District Court filed an order and judgment remanding the action to Kings County Superior Court because defendants’ notice of removal was tardy under Title 28 United States Code section 1446(b).
On May 11, 2009, defendants Hasadsri, McGuinness, Schutt, and Kim filed an answer generally denying the material allegations of appellant’s complaint and setting forth 18 affirmative defenses.
On June 1, 2009, the superior court conducted a case management conference (CMC), noted that appellant had five unserved defendants, and advised appellant that his failure to prosecute the case in a timely manner could result in an order to show cause for potential dismissal of the unserved defendants. The court continued the matter for 90 days to give appellant additional time to serve the remaining defendants.
On August 21, 2009, appellant failed to appear for a telephonic court appearance and did not file a mandatory CMC statement to update the trial court on his efforts to serve the five unserved defendants. On its own motion, the court filed a minute order dismissing defendants Gonzales, Greenough, Hodges-Wilkins, Tomayo, and Yamamoto.
On September 3, 2009, the court issued an order to show cause why appellant failed to appear for the August 21 case management conference and failed to file an updated case management conference statement. The order further directed appellant to make a telephone appearance on October 20, 2009.
On September 15, 2009, the court filed a formal order dismissing the five unserved defendants from the action.
On October 6, 2009, appellant filed a motion for reconsideration of the dismissal order (Code Civ. Proc., § 1008). Appellant maintained the correctional staff did not properly arrange for his telephone call to the court on August 21. Appellant further maintained he did not know an updated case management statement was required for the August 21 conference.
On October 8, 2009, appellant filed an updated case management statement for the October 20 hearing.
On October 13, 2009, appellant mailed the clerk of the court his formal response to the court’s order to show cause regarding dismissal and/or for sanctions.
Although appellant’s response bore an October 23, 2009, file stamp, the very top of the caption page had the clerk’s handwritten notation: “10/20/09, 8:15 a D 2.” The minute order of the August 21 hearing indicated the matter was continued to October 20, 2009, at 8:15 a.m. in Division Two.
On October 20, 2009, the court conducted a continued hearing on the order to show cause and denied the motion for reconsideration.
On November 9, 2009, the court filed a formal order following the order to show cause hearing and affirmed its September 15, 2009, order dismissing the unserved defendants. The court specifically found that appellant failed to make a mandatory telephonic court appearance on August 21, 2009, failed to file a mandatory updated CMC statement about his attempts to serve the unserved defendants, and failed to file proofs of service for those defendants. The court declined to impose sanctions on appellant and determined that dismissal of the entire action was not warranted.
On November 9, 2009, appellant filed a timely notice of appeal, stating: “[t]he issues raised on appeal will be the court’s dismissal of 5 named defendants in the above entitled action on October 20, 2009 in Dept. 2 of the above court by the Honorable Steven Barnes.”
An order of dismissal constitutes a judgment for all purposes and, as such, is generally appealable. (Code Civ. Proc., § 581d; In re Sheila B. (1993) 19 Cal.App.4th 187, 197.) We note appellant’s notice of appeal is taken from “the court’s dismissal of 5 named defendants in the above entitled action on October 20, 2009.…” However, no such order is included in the record on appeal. We can only locate a November 9, 2009, order following the order to show cause hearing on October 20, 2009. We will assume that appellant intended to appeal from the November 9, 2009, order.
STATEMENT OF FACTS
The following facts are taken verbatim from the appellant’s opening brief on appeal:
“Appellant Joseph Martin is a Type I insulin dependent diabetic. As such, it is imperative that his blood glucose levels are monitored and maintained numerous times per day.…
“Appellant is currently incarcerated at Corcoran State Prison and is not allowed to possess a blood sugar monitor in the confines of his cell. Due to this rule, appellant is required to rely on the Licensed Vocational Nurses (L.V.N.s) hired by the prison to check his blood sugar levels and either administer insulin to lower or administer glucose to raise appellant’s blood sugar.
“At numerous times, prison L.V.N.s have been negligent, and deliberately indifferent to the regulations in place to maintain appellant’s diabetic care.
“Appellant has repeatedly filed inmate appeal forms in an effort to insure that staff are held to the standards announced in the regulations. The inmate appeals have gone to the appropriate staff who have either ‘partially granted’ or ‘denied’ them outright.
“The complaint filed in this matter alleged that 9 individuals have (or continue to) been (be) deliberately indifferent to the regulations in place at the prison governing diabetes treatment, and have been negligent in their performance of their duty of care.”
Facts Elicited from the Reporter’s Transcript of the June 1, 2009, Case Management Conference
At the June 1 conference, the court asked appellant about his intention with respect to the unserved defendants. Appellant said the unserved defendants still worked for the [California] Department of Corrections [CDC] but he could not “seem to get any kind of addresses from them, ” even though he had asked the CDC for their addresses. The counsel for the served defendants maintained it was appellant’s burden to properly serve defendants. The court advised appellant:
“All right. Well, Mr. Martin, we can’t keep this case just moving on forever because you can’t serve the other defendants. What’s going to happen is I’m going to set the case management over for an additional 90 days to give you an opportunity to serve these defendants. [¶]... [¶]
“In the event that you do not get them served during that period of time, you face the very real probability of an order to show cause from the Court as to why these defendant should not be dismissed from the case, over your objection, and being forced to have the matter go forward with the defendants that you have, okay?”
The court set a case management conference for August 21, 2009, and directed appellant to file a case management conference statement explaining the steps he had taken to serve the defendants and to explain why they should not be dismissed from the case should he fail to serve them in the 90 days leading to the August 21 conference.
At the conclusion of the hearing, the court re-emphasized:
“You have to file a case management conference statement in writing with the Court before that 90-day period of time. If you do not have these defendants served by that date, and I determine after reading your case management conference statement that the reason you are giving me is insufficient, you face the very real likely possibility that those defendants may be dismissed from the case because you have been unable to serve them.”
Appellant acknowledged that he understood what the court was saying.
Facts Elicited from the Reporter’s Transcript of the August 21, 2009 Case Management Conference
The trial court acknowledged that the Attorney General had filed an August 6 case management statement on behalf of the served defendants and that “the newest case management statement I have from the plaintiff is May 21, 2009 that would have been for the case management June 1.” The court and the deputy attorney general agreed that defendants Yamamoto, Gonzales, Tomayo, Hodges-Wilkins, and Greenough had still not been served. The court reviewed its directions to appellant at the June 1 case management conference, and the deputy attorney general noted: “I believe that the plaintiff has been provided ample opportunity and advance warning that he needs to either get these individuals served or at least provide some information to the Court.”
The court ultimately ruled that appellant was given ample opportunity to either serve the unserved defendants and/or provide an explanation to the court why he did not serve those defendants. The court further noted the appellant did not appear at the August 21 conference by telephone pursuant to the court’s previous order. The court dismissed the unserved defendants on its own motion, set an order to show cause for October 20 (60 days from the August 21 conference) as to why appellant should not be sanctioned for his failure to appear and failure to file an updated case management statement.
On the minute order for August 21, 2009, the clerk of the court noted: “After Court, Sgt. Godina phone and stated that plaintiff Joseph Martin did not appear due to plaintiff being on incorrect phone line.”
Facts Elicited from the Minute Order of the October 20, 2009, Order to Show Cause Hearing
The superior court file does not include a reporter’s transcript for the October 20 hearing. The minute order of that hearing noted that court, counsel, and appellant engaged in discussion and that counsel and appellant made their respective arguments. The minute order stated in pertinent part:
“Court is in receipt of motion for reconsideration tendered by plaintiff on 10/6/09. Motion for reconsideration is denied. The previous unserved defendants--Yamamoto, Gonzales, Greenough, Hodges-Wilkins & Tomayo[--]ordered dismissed on 8/21/09 is to remain in effect. Order to show cause re: dismissal &/04 sanctions is now set aside as the court did file updated CMC statement as required by the law. Court further finds that plaintiff’s failure to appear at the case management conference on 8/21/09 was thru no fault of his own.”
The court directed the attorney general to prepare an order after the hearing and continued the matter for a case management conference on January 11, 2010.
Facts Elicited from the November 9, 2009 Formal Order Following October 20, 2009 Order to Show Cause Hearing
The court’s order stated in pertinent part:
“During the October 20, 2009 OSC hearing, plaintiff stated he had filed and served a motion for reconsideration of the Court’s September 15, 2009 Order dismissing defendants V. Yamamoto, LVN Gonzales, W. Greenough, M. Hodges-Wilkins, and T. Tomayo. The Court advised that while plaintiff had timely filed his motion, it had declined to set the motion for hearing on October 6, 2009, as plaintiff had requested. Defense counsel advised that she had not received plaintiff’s motion, and thus, had no knowledge of the facts and legal authorities plaintiff may be relying on regarding reconsideration of the September 15 Order. Defense counsel orally asserted her objection to plaintiff’s motion for reconsideration, and requested an opportunity to review the motion and prepare a written response, as appropriate. The Court noted this and deemed the matter submitted.
“During the October 20, 2009 OSC hearing, the Court found that plaintiff did not present oral argument beyond what was contained in his moving papers in the motion for reconsideration. The Court further noted that on or around August 10, 2009, the Clerk of the Court had refused to file, and returned to plaintiff, proofs of service that plaintiff had signed himself, because they did not comply with the Code of Civil Procedure for ostensible substituted service of the summons and complaint on unserved defendants. The Court also noted that its file contained no notices of acknowledgment signed by the unserved defendants, and that plaintiff had improperly mailed the notices of acknowledgment to the litigation office, instead of to defendants. The Court held that plaintiff did not proffer new facts, circumstances or legal authority at the October 20, 2009 OSC hearing, that would justify setting aside the September 15, 2009 Order, particularly in light of the Court’s repeated prior admonitions to the plaintiff regarding plaintiff’s obligation to properly serve all defendants, or risk dismissal if he failed to comply. For these reasons, the Court affirmed its September 15, 2009 Order, dismissing defendants V. Yamamoto, LVN Gonzales, W. Greenough, M. Hodges-Wilkins, and T. Tomayo, with prejudice.”
ISSUE
THE DISMISSAL OF FIVE NAMED DEFENDANTS WAS NOT TOO SEVERE A SANCTION BASED ON THE TOTALITY OF THE CIRCUMSTANCES OF THE INSTANT CASE
Appellant contends the dismissal of the five named defendants was too severe a sanction under all of the facts and circumstances of the instant case.
A. The Specific Contention
In appellant’s opening brief, he specifically argues:
“Here, the defendants that were dismissed have not been able to be served due to a mistake made by appellant on the signature of the proofs of service. [Citation.] Another service by mail on the defendants could remedy the defect in service. The court did not consider this alternative prior to dismissing the defendants with prejudice. [¶]... [¶]
“The Kings County Sheriff was ostensibly told that the 5 remaining defendants did not work at the prison, despite the fact that appellant was still treated by these same individuals.
“With no other course of action, appellant attempted to serve these defendants by mail. As mentioned previously appellant mistakenly signed the proofs of service. The court rejected the proofs of service, and the court then allowed defense counsel to draft an order dismissing these defendants with prejudice.
“The ex-parte action took place at the August 21, 2009 hearing which appellant missed due to prison staff. Appellant had no opportunity to address the court or explain the excusable delay. [¶]... [¶]
“Appellant is insulin dependent and currently housed in administrative segregation.... As such he is unable to freely roam around the prison. He cannot and does not have the ability to use a telephone. Any calls made to or by appellant must be court ordered or scheduled by prison staff....
“CDCR Correctional Officers are responsible for handcuffing and escorting inmates to the respective office in which the call will take place and then actually placing the call.
“On August 21, 2009, Officer R. Malin removed plaintiff from his cell, and placed him in a holding cell. Sgt. Godina refused to place plaintiff on the phone with the court. [Citations.] As a result of this missed phone call the court ordered defense counsel to prepare an order dismissing the 5 unserved defendants that were the subject of the case management conference. [Citation.]
“Whether by artifice or inadvertence the court was led to believe that appellant was not diligent in prosecuting this action. This is not accurate.”
B. Governing Law
Generally, the summons and complaint in a California civil action shall be served upon a defendant within three years after the action is commenced against the defendant. An action is commenced at the time the complaint is filed. (Code Civ. Proc., § 583.210, subd. (a).) Effective July 1, 1992, the current Trial Court Delay Reduction Act (the Act) was adopted. The Act drastically altered the management of civil cases in California. Pursuant to the Act, the Legislature directed the California Judicial Council to promulgate standards of timely disposition of civil and criminal actions. Following this mandate, the Council promulgated case disposition time standards. Prior to adoption of the Act, the Legislature granted the courts express statutory power to adopt local rules to expedite and facilitate the business of the courts (Code Civ. Proc., § 575.1.) (Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1059-1061.)
Kings County Superior Court Rule 202, governing service of summons and filing of proof of service, states:
“A. A plaintiff shall serve all named defendants, return and file the original summons and proof of service within 60 days from the date the complaint is filed.
“B. The Court may extend any time requirement for service of process or for filing a proof of service or responsive pleadings upon a showing of good cause on noticed motion or by ex-parte application. The motion or application must be filed before the expiration of the initial time period within which the act is required to be done. When a request for an extension is filed, the Court may deny the request, grant an extension of time to a specified date, or conduct a hearing on the matter.
“C. When applying to the Court to extend time to file the return of summons and proof of service based upon the conditions stated in Code of Civil Procedure Section 583.240 [computation of time for service], the plaintiff shall set forth in the motion the earliest date within which service may reasonably be effected so that the Court may set a date certain for service and filing of a proof of service.…”
With the legislative mandate to manage cases, the Legislature granted to courts the authority to impose sanctions for noncompliance with rules adopted to implement the act. These include the power to dismiss actions or strike pleadings. (Gov. Code, § 68608, subd. (b).) However, in imposing the ultimate sanction of dismissal, judges are required to consider the history of the conduct of the case. (Tliche v. Van Quathem, supra, 66 Cal.App.4th at pp. 1060-1061.) For example, Government Code section 68608, subdivision (b) states: “Judges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings, if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case. Judges are encouraged to impose sanctions to achieve the purpose of this [Act].” (Italics added.) Moreover, Code of Civil Procedure section 575.2, subdivision (a) permits a court’s local rules to prescribe sanctions, including dismissal of an action, for noncompliance with those rules. (Tliche v. Van Quathem, supra, 66 Cal.App.4th at p. 1061.)
An indigent prisoner has a statutory right under Penal Code section 2601, subdivision (e) to initiate civil actions. In the case of an indigent prisoner initiating a bona fide civil action, this statutory right carries with it a right of meaningful access to the courts to prosecute the action. Meaningful access does not necessarily mandate a particular remedy to secure access. The trial court determines the appropriate remedy to secure access in the exercise of its sound discretion. The exercise of the trial court’s discretion will not be overturned on appeal unless it appears there has been a miscarriage of justice. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792-794.)
Trial courts are responsible for the monitoring of civil cases to expedite them through the system. To facilitate the expeditious processing of such cases, parties may be sanctioned for failure to comply with delay-reduction rules or court orders. These sanctions may include terminating sanctions, such as the striking of pleadings. In propria persona litigants are entitled to the same, but no greater, rights as represented litigants and are presumed to know the delay reduction rules. However, the delay-reduction rules and policy of expeditious processing of civil cases do not override, in all situations, the trial court’s obligation to hear cases on the merits. Preventing parties from presenting their cases on the merits is a drastic measure. Terminating sanctions should only be ordered where there has been previous noncompliance with a rule or order and it appears a less severe sanction would be ineffective. (Wantuch v. Davis, supra, 32 Cal.App.4th at pp. 794-795.)
Appellant cites to California Rules of Court, rule 373 to support his contention on appeal. That rule has been superseded by California Rules of Court, rule 3.1342 [motion to dismiss for delay in prosecution] which states in pertinent part in subdivision (e):
“(e) Relevant matters
“In ruling on the motion, the court must consider all matters relevant to a proper determination of the motion, including:
“(1)The court’s file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;
“(2)The diligence in seeking to effect service of process;
“(3)The extent to which the parties engaged in any settlement negotiations or discussions;
“(4)The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;
“(5)The nature and complexity of the case;
“(6)The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;
“(7)The nature of any extensions of time or other delay attributable to either party;
“(8)The condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial;
“(9)Whether the interests of justice are best served by dismissal or trial of the case; and
“(10)Any other fact or circumstance relevant to a fair determination of the issue.
“The court must be guided by the policies set forth in Code of Civil Procedure section 583.130.”
Code of Civil Procedure section 583.130 states in pertinent part:
“It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition.”
DISCUSSION
Our first concern is with the adequacy of the record on appeal. A ruling by a trial court is presumed correct and ambiguities are resolved in favor of affirmance. The burden of demonstrating error rests upon the appellant. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632.) The reviewing court will presume the record in an appeal includes all matters material to deciding the issues raised. If, as here, the appeal proceeds without a reporter’s transcript, this presumption applies only if the claimed error appears on the face of the record. (Cal. Rules of Court, rule 8.163.) An appellant must make an affirmative showing of error by an adequate record. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72.) Where the record is silent as to what was done, it will be presumed that what ought to have been done was not only done but rightly done. (Steuri v. Junkin (1938) 27 Cal.App.2d 758, 760.) The failure to provide an adequate record to support the contentions on appeal and support the appellate arguments with appropriate citations to material facts in the record waives the issues on appeal. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Appellant maintains a trial court should consider the totality of the circumstances before determining whether or not a matter should be dismissed. Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. Expressed another way, it is presumed the unreported trial testimony would demonstrate the absence of error. The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) When a case has been submitted for review on the basis of an appendix or clerk’s transcript, the reviewing court conclusively presumes the evidence was ample to sustain the trial court’s factual findings. (Construction Financial, LLC v. Perlite Plastering Co. (1997) 53 Cal.App.4th 170, 179.)
The record in the instant appeal does not include a reporter’s transcript. Although appellant does not assert insufficiency of the evidence, he does maintain the trial court abused its discretion in ordering the dismissal of the five unserved defendants. The abuse of discretion standard measures whether, given the established evidence, the lower court’s action falls within the permissible range of options set by the legal criteria. A reviewing court does not defer to the trial court’s ruling when there is no evidence to support it. In addition, discretion may not be exercised whimsically and reversal is required where there is no reasonable basis for the ruling or when the trial court has applied the wrong test to determine if the statutory requirements were satisfied. (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452.)
Here, absent a reporter’s transcript, we must conclusively presume the evidence was ample to sustain the trial court’s factual findings. (Construction Financial, LLC v. Perlite Plastering Co., supra, 53 Cal.App.4th at p. 179.) Despite this well-accepted general rule of appellate procedure, we have taken the extra step of summoning the superior court file and independently summarizing the reporter’s transcripts of June 1 and August 21, 2009. The superior court file does not contain a reporter’s transcript for the October 20, 2009 hearing. The absence of a record concerning what actually occurred at the hearing normally precludes a determination that the court abused its discretion. (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.) Here, however, the formal order of November 9, 2009, does recite the bases for the court’s dismissal of the unserved defendants.
The court specifically noted in its formal order that: (1) on or about August 10, 2009, the clerk of the court refused to file and returned to appellant certain proofs of service that appellant had himself signed because they did not comply with the requirements of the Code of Civil Procedure for substituted service; (2) the superior court file did not contain any notices of acknowledgement signed by the unserved defendants; (3) appellant had improperly mailed notices of acknowledgment to the prison litigation office instead of to the defendants themselves; and (4) the court had repeatedly admonished appellant on prior occasions that he had an obligation to properly serve all defendants and risked dismissal if he failed to comply. Thus, the court did set forth substantial grounds for dismissal of the unserved defendants some 16 months after appellant filed his complaint.
Appellant nevertheless maintains the court was mandated to consider the factors enumerated in former California Rules of Court, rule 373 (now California Rules of Court, rule 3.142). Absent a reporter’s transcript for the October 20, 2009, hearing, we simply have no basis for assessing the specific extent to which the trial court considered such factors, made appropriate factual determinations, and exercised its discretion “in conformity with the spirit of the law and in a manner to subserve the ends of substantial justice.” (City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543, 571.)
As the party challenging a discretionary ruling, appellant has an affirmative obligation to provide an adequate record so this court can assess whether the trial court abused its discretion. (Wagner v. Wagner, supra, 162 Cal.App.4th at p. 259.) Absent the relevant reporter’s transcript, we must deem this argument forfeited on appeal.
As noted above, appellant also contends he should not suffer sanctions for failing to appear at the August 21, 2009, telephonic case management conference (CMC). The superior court’s formal order of November 9, 2009, clearly stated: “The Court declined to impose sanctions against plaintiff or dismiss the entire action, based on plaintiff’s claimed inability to appear via telephone at the August 21, 2009, CMC, allegedly due to the fault of the California Department of Corrections and Rehabilitation, and that plaintiff was unaware that he was required to file a further CMC statement prior to the August 21, 2009, CMC. The Court cautioned plaintiff that although he is proceeding pro se in this action, he is still required to comply with procedural and legal requirements.” (Emphasis added.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Hill, J.
In addition, an appellant’s opening brief must state that the judgment appealed from is final or explain why the order appealed from is appealable. (Cal. Rules of Court, rule 14(a)(2)(B).) A statement of appealability serves multiple purposes. First, it requires an appellant to make the preliminary and fundamental determination that the order appealed from is, in fact, an appealable order or judgment. Second, it demonstrates both to other parties and to the Court of Appeal, before work on the merits of a case is begun, why the order is appealable. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 556.) No such statement appears in appellant’s opening brief here. However, as appellant points out in his reply belief, he did file a civil case information statement with this court and noted his appeal was from a “Judgment of dismissal under Code Civ. Proc., §§ 581d, 583.250, 583.360, or 583.430.”