Opinion
C077924
05-09-2017
KRISTA CLEM, Individually and as Trustee, etc., Plaintiffs and Appellants, v. TOM HUNT et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 08-CVC-05384)
Plaintiffs Krista Clem, individually and as trustee of the O'Sullivan Family Trust, appeal from a judgment entered following an order dismissing this action with prejudice. Plaintiffs contend the trial court violated their procedural due process rights by requiring them to pay attorney fees as a condition precedent to filing a sixth amended complaint. Defendants Tom Hunt, Mary Hunt, and Sierra View Holdings, LLC, contend, among other things, that plaintiffs have failed to carry their burden of affirmatively showing error on an adequate record. We agree with defendants and affirm the judgment.
DISCUSSION
A judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Jewish Community Centers Development Corp. v. County of Los Angeles (2016) 243 Cal.App.4th 700, 714.) "In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. 'If 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.' [Citations.]" (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) " '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.' [Citations.]" (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) "Consequently, [appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant]. [Citation.]" (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
The fatal problem with this appeal is that plaintiffs have failed to provide an adequate record from which we can assess their claim of error. In preparing the record on appeal, plaintiffs elected to proceed without a reporter's transcript and designated only a partial clerk's transcript. The record consists solely of: (1) a minute order granting defendants' motion to dismiss the entire case; (2) an order dismissing the case with prejudice; (3) notice of entry of order dismissing case with prejudice; (4) notice of appeal; (5) appellant's notice designating record on appeal; and (6) notice of filing notice of appeal.
A review of these documents reveals that the trial court granted defendants' demurrer to the fifth amended complaint. Thereafter, the court issued a supplemental order (which is not part of the appellate record) giving plaintiffs 30 days to pay defendants $3,620, provide proof of payment to the court, and file their sixth amended complaint. The supplemental order also provided that the trial court would dismiss the case if plaintiffs failed to comply with the order. The minute order granting defendants' motion to dismiss the entire case states that plaintiffs' counsel filed an opposition but did not appear at the hearing on the motion. The trial court's dismissal order states that plaintiffs did not comply with the supplemental order in that they did not timely pay defendants $3,620 or file a sixth amended complaint.
The trial court's dismissal order recounts, in part, the substance of the supplemental order, which is entitled, "Supplemental Orders on Defendants' Demurrer To Plaintiffs' Fifth Amended Complaint; Motion to Strike Allegations Of The Fifth Amended Complaint And Request For Judicial Notice."
Absent more information, we cannot undertake a meaningful review of plaintiffs' claim on appeal. The record should have included the following: (1) the trial court's order granting defendants' demurrer to the fifth amended complaint and the briefing filed in connection with that order; (2) the trial court's supplemental order and any briefing filed in connection with that order; (3) the briefing filed in connection with defendants' motion to dismiss the entire case; and (4) a transcript of the proceedings related to the trial court's order granting defendants' demurrer to the fifth amended complaint, the supplemental order, and the dismissal order. Accordingly, because plaintiffs failed to carry their burden to affirmatively show error on an adequate record, we will affirm the judgment.
It is unclear from the record why plaintiffs were ordered to pay defendants $3,620. According to plaintiffs, they were ordered to pay defendants that amount as a sanction to reimburse defendants for attorney fees. However, there is nothing in the record to support plaintiffs' claim, and plaintiffs provide no detailed explanation for why they were ordered to pay defendants $3,620. Further, plaintiffs failed to cite any part of the record demonstrating that the claim they now raise on appeal was put before the trial court. As such, plaintiffs have failed to show that they properly preserved the issue for appeal. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 [issues not raised in the trial court cannot be raised for the first time on appeal]; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799-801 [declining to consider arguments where appellant failed to demonstrate they were raised in the trial court].)
In light of this conclusion, we will not address defendants' contention that plaintiffs' argument lacks merit based on the appellate record. --------
DISPOSITION
The judgment is affirmed. Defendants are entitled to recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
NICHOLSON, J. We concur: RAYE, P. J. MAURO, J.