Opinion
A148140
05-30-2017
JOHN B. FREITAS, Plaintiff and Appellant, v. BANK OF AMERICA, N.A., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG15792569)
John Freitas, proceeding in propria persona, attempts to challenge a judgment dismissing, with prejudice, his first amended complaint (FAC) against Bank of America, N.A. Freitas contends the trial court erred in sustaining Bank of America's demurrer without leave to amend. On the record before us, we must affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The material facts in this appeal would normally be derived from the allegations of Freitas's FAC and matters we may judicially notice. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) However, as discussed post, our ability to set forth those material facts is limited by the fact the record Freitas provides does not contain his complaint or FAC, Bank of America's demurrer to the FAC, Freitas's opposition, or the trial court's ruling on the demurrer. From the record before us, we can discern only that Bank of America demurred to Freitas's FAC and the trial court sustained the demurrer without leave to amend. On April 28, 2016, the trial court entered judgment against Freitas. The judgment states: "the [FAC] is dismissed with prejudice in its entirety as to all causes of action. Freitas shall take nothing . . . from Bank of America." Freitas filed a timely notice of appeal.
II. DISCUSSION
Freitas contends the trial court erred in sustaining Bank of America's demurrer to his FAC. "On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.] First, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Next, we treat the demurrer as admitting all material facts properly pleaded. Then we determine whether the complaint states facts sufficient to constitute a cause of action. [Citations.] [¶] We do not, however, assume the truth of contentions, deductions, or conclusions of law." (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439-440.) We are "not bound by the trial court's construction of the complaint." (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.) Rather, we independently evaluate the complaint, construing it liberally. (Ibid.; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
We begin by reiterating settled rules of appellate review, often unfamiliar to pro se litigants. " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, 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.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of demonstrating error on the part of the trial court. (People v. Giordano (2007) 42 Cal.4th 644, 666 [" ' "error must be affirmatively shown" ' "]; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) In the procedural posture of the instant appeal, "[the appellant] has the burden to show either that the demurrer was sustained erroneously or that the court abused its discretion in sustaining the demurrer without leave to amend." (Pinnacle Holdings, Inc. v. Simon (1995) 31 Cal.App.4th 1430, 1434.)
Bank of America contends that Freitas has failed to meet his burden to provide an appellate record showing error. We agree. "The party seeking to challenge an order on appeal has the burden to provide an adequate record to assess error. [Citation.] Where the party fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him." (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.) " '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.' " (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) " '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.) Freitas is not exempt from these rules because he represents himself on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) " ' "When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney." ' " (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.)
Here, Freitas elected to proceed by way of a clerk's transcript without any record of the oral proceedings. With respect to the requested clerk's transcript, on pages 2 and 3 of his notice designating record on appeal, Freitas failed to "identify each designated document by its title and filing date." (Cal. Rules of Court, rule 8.122(a)(1).) In addition to the required documents automatically included in every clerk's transcript, Freitas designated only his "Reply In Support of Plaintiff's Opposition to Defendant, Bank of America's Demurrer to Plaintiff's First Amended Complaint," which was filed on April 4, 2016. Thus, our official record consists of the register of actions, Freitas's sur reply, the notice of appeal, the notice designating record on appeal, the judgment, and the notice of entry of judgment. As we have noted, the clerk's transcript does not contain Bank of America's demurrer or the trial court's order sustaining Bank of America's demurrer to the FAC. Accordingly, we do not know the basis for the trial court's demurrer ruling. Most troubling, however, is that the clerk's transcript does not include Freitas's FAC. Thus, we simply have no way of independently determining if Freitas alleged facts stating a cause of action.
Freitas's notice designating the record on appeal is ambiguous. Despite the form's instructions to elect "the . . . method of providing the Court of Appeal with a record of the documents filed in the superior court (check a, b, c, d, or e . . . )," Freitas selected multiple methods—a (clerk's transcript), b (appendix), and c (original superior court file). Only a clerk's transcript was ever filed. This was not an error of the superior court clerk. Despite the requirement found in California Rules of Court, rule 8.128(a)(2), Freitas did not attach a stipulation to use the original superior court file to Freitas's notice. Apparently, such a stipulation was never reached. Freitas also did not file an appendix with his opening brief. (See id., rule 8.124(e)(2) ["an appellant's appendix must be served and filed with the appellant's opening brief"].)
Freitas attaches to his opening brief what appear to be copies of two substitutions of trustee and a notice of default. While a party may attach as exhibits copies of "materials in the appellate record," these documents do not appear in the record and we may not consider them. (See Cal Rules of Court, Rule 8.204(d), italics added.)
As Bank of America correctly points out, Freitas did not seek to augment the record in a timely manner after the clerk's transcript was filed. (Cal. Rules of Court, rule 8.155(a)(1).) Instead, Freitas waited 76 days and only then sought to augment the clerk's transcript to include his FAC, complaint, as well as the demurrer and opposition papers. By that time, both Freitas's opening brief and the respondent's brief had been filed, and he presented no excuse for the late filing other than his ignorance of the governing rules. We denied the motion to augment on the grounds it was untimely. (People v. Preslie (1977) 70 Cal.App.3d 486, 492 ["requests for augmentation made after a reasonable time has expired from receiving the record on appeal . . . will be denied absent a strong showing of unusual or unavoidable circumstances giving rise to the delay"]; Ct. App., First Dist., Local Rules, rule 7(b), Augmentation of record ["[a]ppellant should file requests for augmentation . . . within 30 days of the filing of the record"].) After waiting another 23 days, Freitas sought another avenue to augment the record by filing a request for judicial notice, which we also denied as untimely. (Preslie, at p. 494 ["in the interest of orderly judicial procedure[,]" requests for judicial notice should "be made well before" briefs are filed].)
Freitas's opening brief does not provide any citations to the record properly before us. The appellant "must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 408, italics added; accord, Cal. Rules of Court, rule 8.204(a)(1)(C); Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 96-97, fn. 2 ["[e]ach and every statement in a brief regarding matters that are in the record on appeal, whether factual or procedural, must be supported by a citation to the record"].) Even if we had an adequate record, it would not be our responsibility to search through it seeking evidence in support of Freitas's position. (Williams v. Williams (1971) 14 Cal.App.3d 560, 565.) --------
More recently, on March 30, 2017, Freitas filed a motion requesting the superior court clerk be ordered to pay sanctions for failing "to follow [Freitas's] written instructions" in his notice designating record on appeal. We deny Freitas's motion for sanctions. It is clear the deficiencies in the record resulted from Freitas's failure to heed the requirements of court rules in designating the record on appeal, not any misstep by the superior court clerk.
Freitas failed to furnish an adequate record. Without the operative complaint and the party pleadings on demurrer, it is simply impossible to determine if the trial court erred in granting the demurrer. Accordingly, we cannot address the merits and the judgment must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; Foust v. San Jose Construction Co., Inc., supra, 198 Cal.App.4th at p. 187.)
III. DISPOSITION
The judgment is affirmed. Bank of America shall recover its costs on appeal.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.