Opinion
A130847
09-27-2011
YAN GIMEL, Plaintiff and Appellant, v. SAFEWAY, INC., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. CGC-08-482007)
Pro per appellant Yan Gimel appeals from an order denying his "Motion to Vacate Judgment Under An Arbitration Award," arguing that it is unclear whether the trial court read and considered the briefs and evidence he submitted to the court in support of his motion. Because appellant has not provided an adequate record to this court for review and identifies no reversible error, we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
According to respondent Safeway, Inc., appellant sued respondent in 2008, an arbitration hearing was held in appellant's absence after he failed to show up, an arbitration award denied appellant's claim, and a judgment was entered in the trial court. Appellant apparently filed a motion to vacate the judgment; however, on November 10, 2010, an order was filed in the trial court denying appellant's motion. The order states that appellant's "Motion to Vacate Judgment Under An Arbitration Award" was denied because it was untimely and failed to state a basis for relief.
A notice of entry of order was served on November 18, 2010, and appellant appealed on January 11, 2011. He elected to proceed without a reporter's transcript, and by submitting an appendix pursuant to California Rules of Court, rule 8.124. However, the only documents submitted to this court for review are the order denying appellant's motion, the notice of entry of that order, and appellant's notice of appeal. (Cf. Cal. Rules of Court, rule 8.124(b) [required contents of appendix], (d) [form of appendix].)
Respondent argues that the appeal is untimely, because it was taken one year after the judgment was entered in this case in January 2010, and because appellant failed to comply with the deadlines to appeal set forth in California Rules of Court, rule 8.108(c) [extension of deadline to file notice of appeal where motion to vacate is filed within time to appeal]. It is clear from appellant's civil case information statement and his appellate briefs that he challenges the order denying his motion to vacate the judgment, as opposed to the underlying judgment. (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 136 [although court lacked jurisdiction to review judgment where party filed untimely notice of appeal from judgment, court had jurisdiction to review subsequent order denying motion to vacate].)
II.
DISCUSSION
Appellant's sole claim of error is that it is unclear whether the trial court read and considered his motion to vacate the judgment before ruling on it. He notes that the order denying his motion, which was prepared by respondent's counsel, stated that the ruling was based on a consideration of the evidence and authorities submitted "by counsel." Because appellant was representing himself and is not an attorney, he argues, the wording of the order is an indication that the trial court did not review the evidence and authorities submitted by him.
Appellant's interpretation of the trial court's order is not a reasonable one. Even if it was, however, and it was clear that the trial court did not consider appellant's submissions, appellant fails to demonstrate reversible error. Absent any of the documents underlying the order (including the judgment and the parties' briefing on appellant's motion to vacate), or even a brief summary of the facts and procedural history of the parties' dispute, we have no reason to doubt that the trial court's order was correct, and that appellant's motion to vacate was untimely and lacked merit. That is because " ' "[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." [Citation]' [Citations.] '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, original italics.) Although appellant is representing himself in this appeal, he is not entitled to special treatment and is required to follow the rules. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.)
Appellant does not advance any argument that overcomes the presumed correctness of the trial court's order, and the record is inadequate for meaningful review.
III.
DISPOSITION
The trial court's order is affirmed. Respondent shall recover its costs on appeal.
Sepulveda, J.
We concur:
Ruvolo, P. J.
Rivera, J.