Opinion
F073996
05-24-2017
Estate of JEAN MICHEL IRIGOYEN, Deceased. LAURA KUHNE-IRIGOYEN, Petitioner and Respondent, v. OSCAR LUNA, Claimant and Appellant.
Oscar Luna, in pro. per., for Claimant and Appellant. Dowling Aaron, Stephanie Hamilton Borchers and Trever P. Goossen for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CEPR01043)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Judge. Oscar Luna, in pro. per., for Claimant and Appellant. Dowling Aaron, Stephanie Hamilton Borchers and Trever P. Goossen for Petitioner and Respondent.
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Oscar Luna, representing himself, appeals from a probate court's decision on the petition of Laura Kuhne-Irigoyen, the administrator of the estate of Jean Michel Irigoyen, to determine the ownership of certain real and personal property. We dismiss the appeal because Luna has not provided an adequate record to review the probate court's ruling.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2014, Laura Kuhne-Irigoyen filed a petition for letters of administration of the estate of Jean Michel Irigoyen in the probate department of Fresno County Superior Court, Case No. 14CEPR01043. She was appointed the administrator of the estate in January 2015.
On June 29, 2015, Kuhne-Irigoyen filed a petition to determine ownership of estate property and direct its transfer to "claimant." On April 7, 2016, Oscar Luna filed a motion to dismiss or abate the June 2015 petition for lack of jurisdiction; the documents filed included a notice of motion, memorandum of points and authorities, and Luna's declaration. Kuhne-Irigoyen filed an opposition to Luna's motion, including a memorandum of points and authorities, an objection and her attorney's declaration. She also filed a trial brief. None of these documents are in the appellate record, as Luna did not designate them for inclusion.
Subsequent references to dates are to dates in 2016, unless otherwise stated.
The hearing on the petition was held on April 19; Luna did not appear at the hearing. On April 26, a judgment was filed which confirmed the estate's ownership in the property. The probate court found that Luna was not a creditor of the estate and did not hold a money judgment against the decedent, so his citing of Estate of Dabney (1951) 37 Cal.2d 672, 678, was inapplicable. The probate court dissolved a lis pendens Luna had recorded against the real property, declaring it null and void. Notice of entry of judgment was filed on May 6.
The judgment is not in the clerk's transcript. Luna, however, filed a request for judicial notice in this court asking us to take judicial notice of (1) a lis pendens recorded with the Fresno County Recorder which provided notice of a pending action, namely Fresno County Superior Court Case No. 14CECG02921, in which Luna asserted a claim over real property located on Amador Street in Fresno, and (2) the April 26 judgment, which was recorded with the Fresno County Recorder. Both documents were attached to his request. We deferred ruling on the motion, which we now grant. (Evid. Code, § 452, subd. (d).)
On May 9, Luna filed notices of intent to move for a new trial and to move to set aside the judgment. In the notices, Luna asserted that on October 1, 2014, he filed an action in Fresno County Superior Court, Luna v. Estate of J.M. Irigoyen, et al., Case No. 14CECG02921, relating to his ownership in real property located in Fresno and a 2003 Porsche 911 Turbo, and that his rights to those properties were decided in that case by a judgment on the pleadings granted in his favor, which was subject to a "post-judgment sua sponte order" that granted the defendants leave to amend their unverified answer. Luna asserted he was challenging that ruling before this court in Case No. F073104.
On May 12, Luna filed an ex parte request for a 10-day extension to file supporting declarations and a memorandum of points and authorities as his incarceration in a federal institution in Texas made it difficult for him to research California law. The probate court denied the request. On May 16, Luna filed amended notices of intent to move for a new trial and to move to set aside the judgment, in which he asserted the court lacked subject matter jurisdiction due to his appeal in Case No. F073104.
On May 26, Luna filed a second ex parte request for a 10-day extension to file the supporting declarations and memorandum of points and authorities for his motions, again based on his incarceration. On May 27, the probate court denied Luna's new trial motion because he failed to meet the statutory deadlines. The probate court explained that Luna's deadline to file a memorandum of points and authorities and supporting affidavits was May 19, but as of May 27, neither had been filed with the probate court, and while Luna had requested continuances, the court denied them because Luna had not shown good cause.
On May 31, Luna filed a memorandum of points and authorities in support of the new trial motion and to set the judgment aside, along with his declaration. Luna argued, among other things, that the probate court lacked jurisdiction to interfere with the superior court case, and the probate court lost jurisdiction due to Luna's appeal in the superior court case. Attached to Luna's declaration was the original and second amended verified complaints he filed in the superior court case.
On June 29, Luna filed a notice of appeal from the probate court's May 27 order. Luna elected to proceed without a reporter's transcript and designated for inclusion in the record only those documents related to his post-trial motions for new trial and to set aside the judgment.
We note that an order denying a new trial motion is not directly appealable and is only reviewable on appeal from the underlying judgment. (Walker v. Los Angeles Metropolitan Transp. Authority (2005) 35 Cal.4th 15, 18.) Since it is reasonably clear that Luna was trying to appeal from the April 26 judgment and no prejudice would accrue to Kuhne-Irigoyen, we exercise our discretion to treat the notice of appeal as being from the April 26 judgment. (Ibid.) --------
DISCUSSION
Luna does not challenge the probate court's denial of his new trial motion. Instead, he argues (1) the April 26 judgment is void because the probate court lacked subject matter jurisdiction since the superior court assumed and exercised jurisdiction over the properties; (2) any jurisdiction the probate court had was lost when he appealed the superior court's ruling on his motion for judgment on the pleadings; (3) the probate court did not have jurisdiction to dissolve the lis pendens, since such a motion must be brought in his superior court action; and (4) the probate court did not have authority to dissolve the lis pendens because a statutory ground for expungement had not been established.
Kuhne-Irigoyen has brought a motion to dismiss the appeal because Luna failed to submit an adequate record for this court to review his claims. She correctly points out that Luna failed to include the documents the probate court relied on in reaching its judgment, and instead designated only the post-trial motions. She argues the record Luna did submit is inadequate to establish the probate court lacked jurisdiction, since a lack of jurisdiction must appear on the face of the record, citing Carpentier v. Oakland (1866) 30 Cal. 439, 448, and whether the superior court action deprived the probate court of jurisdiction cannot be determined since the record does not include documents from the superior court action. She asserts that without a complete record of what transpired in both courts, she has no way of rebutting Luna's contention that the probate court lacked jurisdiction.
Luna responds that he never received a notice that he failed to procure the record pursuant to California Rules of Court, rule 8.140(a). He asserts that a reporter's transcript of the hearing is irrelevant to his appeal since he relies exclusively on the lack of jurisdiction, which he claims is established by the lis pendens and April 26 judgment of which he asked us to take judicial notice. He claims there is no authority for dismissal as a sanction for an incomplete appellate record and that only a total failure to procure the appellate record carries a dismissal sanction, citing rule 8.140(b). Luna asks us to sanction Kuhne-Irigoyen because the motion is frivolous.
We agree with Kuhne-Irigoyen. In an appeal, the appellate court is constitutionally required to presume the trial court's judgment correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [" 'an ingredient of the constitutional doctrine of reversible error' "].) It is not the appellate court's burden to tell an appellant what documents or oral proceedings should be included in the record to prove the judgment incorrect. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498-499 [appellate court declined appellant's invitation to "take it upon ourselves to fulfill his responsibilities"].) Appellants representing themselves have the same burden in this respect as appellants represented by counsel. (See, e.g., Falahati v. Kondo (2005) 127 Cal.App.4th 823, 834 [pro se civil litigants held to same standard as attorney]; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639 [held to same restrictive rules of civil procedure as attorneys].)
It is the appellant, not the appellate court, who has the burden of overcoming the presumption of correctness by, most fundamentally, providing an adequate record for review. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [court declines to order rehearing on attorney fees because appellant failed to provide reporter's transcript of settled statement showing trial court's rationale for reduced award].) "A good test to apply is that if the particular form of record appears to show any need for speculation or inference in determining whether error occurred, the record is inadequate." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 4:43, p. 4-12.) " '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.' " (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
Luna has utterly failed to meet his burden of establishing reversible error by an adequate record. This is because he has failed to include the documents the probate court reviewed when it ruled on Kuhne-Irigoyen's petition, which included Luna's own motion to dismiss the petition. On this record, we do not know what arguments Luna raised below or the basis of the probate court's ruling, including its decision to dissolve the lis pendens. Moreover, while the complaints in the superior court action are in the record, none of the other documents, such as the motion for judgment on the pleadings, the resulting ruling, or the notice of appeal, are included. Without those documents, it is impossible to evaluate Luna's claim that the superior court had exclusive jurisdiction over the property at issue or that filing the appeal in the superior court action deprived the probate court of jurisdiction. Without any of these documents, we have no basis to conduct a meaningful review of the probate court's April 26 ruling.
Generally, when an appellant fails to provide an adequate record, we follow the presumption that an appealed judgment or order is presumed to be correct and, on that basis, affirm the appealed judgment or order. (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 [it is appellant's burden to provide an accurate record on appeal to demonstrate error; "[f]ailure to do so precludes adequate review and results in affirmance of the trial court's determination"].) In light of Luna's failure to provide an adequate record from which we can determine his appeal, rather than affirm the judgment based on an inadequate record, we elect to dismiss the appeal. (See, e.g., McGinnis v. Monjoy (1959) 169 Cal.App.2d 519, 522-523 [appellate court exercised discretion to dismiss appeal where appellants failed to diligently prosecute the appeal].)
DISPOSITION
The appeal is dismissed. The parties shall bear their own costs.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.