Opinion
F052021
4-18-2008
STANLEY BRADFORD CLARKE, Plaintiff and Appellant, v. SHERRI RICH MOUNT, Defendant and Respondent.
Stanley Bradford Clarke, in pro. per., for Plaintiff and Appellant. Wild, Carter & Tipton, Richard A. Harris and Monrae L. English for Defendant and Respondent.
NOT TO BE PUBLISHED
Appellant Stanley Bradford Clarke, who is representing himself, has failed to procure a record on appeal that would allow us to reach the merits of his arguments. Thus, we will affirm the judgment of the trial court.
This is not to say that had we reached the merits, Clarke would have prevailed. We simply cannot address the merits because of the deficient record.
FACTUAL AND PROCEDURAL SUMMARY
Clarke and his former wife are going through a hotly contested divorce. Respondent Sherri Rich Mount represents Clarkes former wife. Clarke contends that Mount took actions in the divorce proceedings that caused him injury and entitled him to recover damages against Mount. He filed a civil complaint naming Mount as the defendant.
Mount contends that her only interaction with Clarke was as an advocate for his former wife, and that anything she may have done was protected by the litigation privilege. (Civ. Code, § 47.)
Mounts demurrer to Clarkes complaint was sustained with leave to amend and Clarke filed a first amended complaint. Mount then filed a special motion to strike pursuant to the provisions of Code of Civil Procedure section 425.16, the remedy provided by the Legislature to combat what have been termed "strategic lawsuits against public participation," commonly referred to as SLAPP suits. The trial court granted the motion and awarded attorney fees. Clarke appeals from the judgment entered after his first amended complaint was filed.
DISCUSSION
The reason we cannot reach the merits of the appeal is because the record does not contain the first amended complaint, which appears to be the operative pleading.
Clarke filed his notice of appeal on December 28, 2006. On January 8, 2007, he filed a notice designating the record on appeal, checking the box indicating he wanted the reporters transcript prepared and stating he would prepare an appendix in lieu of a clerks transcript. Attached to the designation was a notice designating documents to be included in the clerks transcript, including the second amended complaint. Since the notice indicated that Clarke would prepare an appendix in lieu of a clerks transcript, this designation was ignored.
We acknowledge that Clarke designated the second amended complaint, while it appears to us the first amended complaint is the operative pleading. The difference is irrelevant because neither document is included in the record on appeal.
On January 17, 2007, Mount filed a notice designating the record on appeal and elected to have a clerks transcript and a reporters transcript prepared. The documents designated to be included in the clerks transcript did not include Clarkes operative complaint.
On January 18, 2007, Mount filed an amended notice designating the record on appeal and this time limited the request to a clerks transcript only. Again, the documents designated did not include the operative complaint.
These are all of the notices included in the clerks transcript.
We, however, also have an application by Clarke for an extension of time to file his opening brief in this court. In support of the application, Clarke stated that he needed more time to prepare his opening brief because the reporters transcript was prepared improperly. He stated that several of the documents that he requested be included in the clerks transcript, including the second amended complaint, were omitted. Clarke obviously was confused because he never requested a clerks transcript be prepared, instead electing to proceed by way of an appendix. What is significant, however, is that Clarke did not do anything to ensure that the documents he thought should be before the court, including the operative complaint, were included in the record.
It is the appellants responsibility to provide this court with an adequate record affirmatively proving error. (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 494.) Clarke has not done so in this case. Without the operative complaint, we do not know what causes of actions were contained in the complaint, nor do we know what factual allegations were made in the complaint. The absence of this information prevents us from determining if the causes of action arose from protected activity and whether Clarke did, or could, allege facts that would establish a probability that he would prevail on the merits of the cause of action. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
The briefs are not helpful in this endeavor. Both parties refer to the complaint in very broad terms, making meaningful analysis impossible. There is virtually no discussion of the facts that were alleged in the complaint.
We have received Clarkes motion to augment the record with a declaration he filed in the trial court. This declaration will not affect the outcome of this appeal; therefore, we deny the motion.
In the absence of an adequate record to demonstrate error, we are bound by the presumption that the judgment is correct. (Ermoian v. Desert Hospital, supra, 152 Cal.App.4th at p. 494.)
DISPOSITION
The judgment is affirmed. Sherri Rich Mount is awarded her costs on appeal.
We concur:
VARTABEDIAN, Acting P.J.
GOMES, J.