Opinion
F083587
06-28-2023
FADUMO ABDILLAHI GULED, Plaintiff and Appellant, v. WESTERN DENTAL SERVICES, INC., Defendant and Respondent.
Fadumo Abdillahi Guled, in pro. per., for Plaintiff and Appellant. Zaro & Sillis and Michael James Snoke for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 16CECG03528. D. Tyler Tharpe, Judge.
Fadumo Abdillahi Guled, in pro. per., for Plaintiff and Appellant.
Zaro & Sillis and Michael James Snoke for Defendant and Respondent.
OPINION
DE SANTOS, J.
Appellant Fadumo Abdillahi Guled brought this dental malpractice action against Western Dental Services, Inc. (Western Dental) following a dental procedure in which Guled had her remaining bottom teeth extracted, and was fitted for, and received, an immediate lower denture. Guled alleged that the dentist who performed the surgery pulled out an excessive amount of her lower jawbone as part of the teeth extraction and cut her gums down in a manner that causes her dentures not to fit property. She alleged that she experienced a great deal of pain, and suffered a loss of self-esteem, as a result of the procedure, and that the repair of her lower jawbone and related dental work will cost her $45,000.
Much of the record on appeal, including the judgment, shows appellant's name as Guled Fadumo Abdillah, or Guled Fadumo Abdillahi. As confirmed at oral argument, appellant's true name is Fadumo Abdillahi Guled. Additionally, appellant's native language is Somali. She communicated with the Court of Appeal at oral argument through an interpreter provided by the court.
"An immediate denture is a complete denture or partial denture inserted on the same day, immediately following the removal of natural teeth." (<https://dentistry.uiowa.edu/immediate-dentures> [as of June 28, 2023].) By contrast, a "conventional denture ... is made after the tissues have healed for six to eight weeks following extractions, and without wearing a denture." (Ibid.)
Western Dental moved for summary judgment. The motion was unopposed and granted, and judgment was entered in favor of Western Dental. On appeal, Guled contends that she was not validly served with the motion for summary judgment; that, as a result, she was denied due process; and that, therefore, the judgment is null and void.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are drawn largely from the evidence presented in support of Western Dental's motion for summary judgment. Additional facts relevant to issues presented on appeal will be discussed in the DISCUSSION (bold type omitted) section of this opinion.
On March 25, 2015, Guled presented to Western Dental for a dental examination and consultation. Western Dental obtained x-rays of Guled's full mouth. She had four teeth on her upper dental arch and four teeth on her lower dental arch. Western Dental gave Guled two options for treatment: (1) have a crown placed on one tooth on her lower arch with a partial denture, and a crown placed on each of her four teeth on her upper arch, with a partial denture; or (2) have all of her teeth extracted, with full dentures on both arches.
On July 1, 2015, Guled presented to Western Dental to have an impression taken for an immediate full lower denture. According to notes made in her dental chart, Guled wanted the immediate lower denture but did not want to proceed with an immediate upper denture. The dentist that examined Guled advised her that "the fitting of the denture may not be ideal if there are no opposing teeth" but Guled still declined the immediate upper denture.
On August 31, 2015, Guled again presented to Western Dental for examination, x-rays, and another impression for an immediate lower denture. On September 1, 2015, Guled consented to Western Dental's treatment plan including the extraction of her lower teeth and an immediate lower denture.
On October 27, 2015, Guled consented to, and underwent, the dental procedure. Her remaining bottom teeth were removed and she received an immediate lower denture at that time. Guled did not return for follow up visits.
An expert retained by Western Dental, Theodore Jacobson, D.D.S., provided a declaration in support of Western Dental's summary judgment motion in which he explained that "[a]fter extractions occur a patient's mandibular ridge will heal and shape. This requires a patient to complete several follow up appointments to have a denture adjusted or remade to conform to the changing morphology of the ridges of [the] mouth."
On November 2, 2016, Guled, acting in propria persona, filed her original complaint. Western Dental demurred and the trial court sustained the demurrer with leave to amend. Guled amended her complaint several times thereafter. On September 10, 2019, following several demurrers by Western Dental, Guled filed her third amended complaint (TAC), the governing complaint in this matter.
In the TAC, Guled alleged she sustained serious injuries and damages due to the dental surgery performed by Western Dental including cut gums, and the loss of gum and bone that caused her dentures not to fit properly. She further alleged Western Dental did not advise her that such injuries were possible as a result of the surgery.
On June 4, 2021, Western Dental filed a motion for summary judgment on the TAC. Guled did not file a written opposition to the motion.
On August 30, 2021, the trial court issued its tentative ruling to grant Western Dental's motion for summary judgment. In a minute order dated September 2, 2021, the court adopted its tentative ruling. The minute order provided, in part: "Other: The matter having been under advisement, the court now adopts the Tentative Ruling without any modifications."
On September 15, 2021, the trial court entered judgment against Guled and in favor of Western Dental. Notice of entry of the judgment was served and filed on September 29, 2021.
On November 19, 2021, Guled timely filed her notice of appeal of the judgment.
DISCUSSION
I. The Parties' Contentions on Appeal
Guled's sole assignment of error on appeal is that Western Dental did not validly serve her with the summary judgment motion. As a consequence, she contends, her due process rights were violated because she had no notice of the motion and the judgment is null and void.
Guled contends the address she had listed with the trial court is 1784 West San Ramon Avenue, Fresno, CA 93711 and "this is the address [she] has always had on the court file." She argues, "[t]he motion for summary judgment along with all attachments were mailed to the wrong address[,] which is 1784 San Ramon Avenue, Fresno, CA 93711 .. .. [Western Dental] forgot to include 'West' in [Guled's] address which made all the documents undeliverable by the United States Postal Service [USPS] ...."
In support of her contention that the West San Ramon Avenue address "is the address [she] has always had on the [trial] court file," Guled references a single document in the record on appeal-a clerk's certificate of mailing dated July 21, 2021, showing the clerk of court mailed a July 20, 2021 minute order and tentative ruling related to three motions to compel to the West San Ramon Avenue address. Guled does not cite to, or reference, any other document to support her contention that the address she had on file with the court was the West San Ramon Avenue address.
In response, Western Dental contends Guled was provided notice of the summary judgment motion at the address she has repeatedly used in filings with the trial court and with this court. In support of its contention, Western Dental cites to numerous documents filed by Guled in which she omitted "West" from her address, including Guled's (1) original complaint filed November 2, 2016; (2) first amended complaint filed June 14, 2017; (3) TAC filed September 10, 2019; (4) notice of appeal filed November 19, 2021; (5) Guled's notice designating record on appeal filed January 3, 2022; and (6) Guled's application for extension of time to file brief filed in, and granted by, this court on April 13, 2022.
On December 19, 2022, Western Dental moved this court to take judicial notice of the following: (1) a law and motion minute order of the trial court dated September 2, 2021; (2) correspondence from this court to Guled dated December 16, 2021, January 12, 2022, February 14, 2022, March 16, 2022, and July 7, 2022, respectively; (3) this court's April 13, 2022 order granting Guled's application for extension of time to file brief (which includes the application itself); and (4) the fact that "[t]he [USPS] publicly-available address lookup website automatically converts" 1784 San Ramon Avenue, Fresno, CA 93711 to "1784 W. San Ramon Avenue, Fresno, CA 93711-2936." The motion requesting judicial notice was unopposed. We deferred ruling on the request for judicial notice pending consideration of the appeal on its merits. We now grant the motion as to item (3) of the preceding paragraph to the extent it consists of an application by Guled to this court in which she continued to utilize the 1784 San Ramon Avenue address (without using the "West" designation) even after she filed her notice of appeal. (Evid. Code, § 452, subd. (d).) We also grant the motion as to item (4) of the preceding paragraph. (Id., § 452, subd. (h).) These two items tend to demonstrate the two alternative addresses (i.e., 1784 San Ramon Ave., Fresno, CA and 1784 W. San Ramon Ave., Fresno, CA) are viewed as equivalent addresses by Guled, and the USPS, respectively. We decline to take judicial notice of the remaining documents requested by Western Dental. Although item (1)-the September 2, 2021 law and motion minute order-indicates Guled was present at the hearing on Western Dental's motion for summary judgment, it does not demonstrate Guled received notice of the hearing by way of Western Dental's service of the motion paperwork, and does not demonstrate Guled argued the merits of the motion. As for the correspondence identified in item (2), the address used by this court in sending correspondence to Guled does not tend to establish that the address used by the court was correct except by way of hearsay, and does not speak to the address of record Guled had on file with the trial court. "While the courts take judicial notice of public records, they do not take notice of the truth of matters stated therein." (People v. Long (1970) 7 Cal.App.3d 586, 591.)
In addition, Western Dental references numerous documents sent to Guled by the trial court, or by this court, in which each of the respective courts omitted "West" from her address, including: (1) a September 7, 2017 ruling sustaining the demurrer to the first amended complaint; (2) a December 6, 2017 law and motion minute order sustaining the demurrer to the second amended complaint; (3) the clerk's transcript on appeal; and (4) various correspondence from the clerk of this court which we have declined to judicially notice (see fn. 4, ante).
Western Dental further contends the address they used to serve Guled with the notice of the motion and motion paperwork (which Guled contends is incorrect) is, in actuality, the same address Guled contends is the correct address and that the USPS recognizes the two addresses as equivalent. At Western Dental's request (see fn. 4, ante), we take judicial notice of the fact that "[t]he [USPS's] publicly-available address lookup website automatically converts" 1784 San Ramon Avenue, Fresno, CA 93711 to "1784 W. San Ramon Avenue, Fresno, CA 93711-2936."
<Https://tools.usps.com/zip-code-lookup.htm?byaddress> (as of June 28, 2023).
Finally, Western Dental further contends the record demonstrates Guled appeared at the hearing on the motion for summary judgment and, in arguing the merits of the motion, has waived her contention that she was not properly served with the motion paperwork.
No reporter's transcript, agreed statement, or settled statement is included in the record on appeal. Consequently, we are unable to determine whether Guled actually argued the merits of the motion as Western Dental contends.
II. Standard of Review
Guled has not identified the standard of review applicable to her claim. Western Dental contends Guled only raises a question of fact and argues this matter should be "reviewed under the deferential, clearly erroneous standard," citing People v. Louis (1986) 42 Cal.3d 969, 985. However, allowing for the fact that Guled contends she was served with the motion at an incorrect address, the facts underlying that contention are not in dispute. Accordingly, we conclude the matter presents a purely legal question which we review de novo. (In re J.R. (2022) 82 Cal.App.5th 569, 587-588 [facts concerning "claim that [agency] violated mother's due process rights by failing to provide her with adequate notice of ... proceedings" were undisputed and "presented] a purely legal question that is subject to de novo review"].)
III. Analysis
A. Guled's Obligations and Burden on Appeal
"We approach a summary judgment appeal, as with any appeal, with the presumption the appealed judgment is correct." (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684.)"' "On review of a summary judgment, the appellant has the burden of showing error, even if he [or she] did not bear the burden in the trial court. [Citation.] . . .. 'As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.'" '" (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 379 (Dinslage).)
Typically, in cases involving the review of a summary judgment, an appellate court "conducts a de novo examination to see whether the moving party is entitled to summary judgment as a matter of law or whether there are any genuine issues of material fact." (Enterprise Leasing Corp. v. Shugart Corp. (1991) 231 Cal.App.3d 737, 744.) However, this case is postured differently. Here, Guled is not arguing that Western Dental did not meet its initial burden on summary judgment, or that she demonstrated the existence of a triable issue of material fact in response thereto. Rather, Guled is arguing Western Dental did not properly serve her with notice of the motion and motion paperwork. Accordingly, we limit our review to that single issue. (Dinslage, supra, 5 Cal.App.5th at p. 379; Mark Tanner Construction, Inc. v. HUB Internat. Ins. Services, Inc. (2014) 224 Cal.App.4th 574, 583-584 [same].)
"' "[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed."' [Citation.] 'Consequently, [the 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 [the appellant].'" (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) An appellant's obligation to provide an appellate court with an adequate record to demonstrate error, citations to the record to support factual contentions, and citations to relevant authority in support of arguments raised on appeal, apply equally to appellants who choose to represent themselves. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
B. Guled Has Failed to Demonstrate Any Error in the Manner of Service of the Summary Judgment Motion or That She Was Denied Due Process
" 'Notice is fundamental to due process. "Engrained in our concept of Due Process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act."' (7 Witkin, Summary of Cal. Law (11th ed. 2017) Constitutional Law, § 706, p. 1082, quoting Lambert v. California (1957) 355 U.S. 225, 228.)" (People v. Ruiz (2020) 59 Cal.App.5th 372, 382.)
"The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements." (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) "Successful service by mail requires strict compliance with all statutory requirements, including those set forth in [Code of Civil Procedure] section 1013; the failure to comply deprives a court of jurisdiction to act." (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)
Code of Civil Procedure section 1013 provides, in part: "In case of service by mail, the notice or other paper shall be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the [USPS], in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party's place of residence." (Code Civ. Proc., § 1013, subd. (a), italics added.)
The first page of each paper filed with the trial court must contain, in the upper left hand corner of the page, "the name, office address or, if none, residence address or mailing address (if different) ... of the attorney for the party in whose behalf the paper is presented, or of the party if he or she is appearing in person." (Cal. Rules of Court, rule 2.111(1), italics added.) California Rules of Court, rule 2.200 provides: "An attorney or self-represented party whose mailing address, telephone number, fax number, or e-mail address (if it was provided under rule 2.111(1)) changes while an action is pending must serve on all parties and file a written notice of the change." (Italics added.) " '[T]he "person to be served" has the burden of notifying the court of any change of address, and failure so to do does not enable him to claim improper notice.'" (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 31.)
Guled's choice to represent herself in this matter" 'does not entitle [her] to any different treatment in regard to [her] duty to notify the court when [she] change[s] [her] address. "A lay person, who is not indigent, and who exercises the privilege of trying his own case must expect and receive the same treatment as if represented by an attorney- no different, no better, no worse."' [Citation.] 'A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.'" (Kramer v. Traditional Escrow, Inc., supra, 56 Cal.App.5th at pp. 32-33.)
Here, Guled's very first filing with the court-i.e., her original complaint-lists her address as 1784 San Ramon Avenue, Fresno, CA 93711. Notably, this address does not include the "West" designation for San Ramon Avenue. Moreover, nothing in the record on appeal indicates that Guled filed and served on all parties a written notice of a change in her address as required under California Rules of Court, rule 2.200.
Thereafter, Guled filed numerous additional documents with the trial court and this court using the 1784 San Ramon Ave address (without the "West" designation). Such additional documents include (1) her first amended complaint filed with the trial court on June 14, 2017; (2) her TAC filed with the trial court on September 10, 2019;(3) the notice of appeal filed with the trial court on November 19, 2021; (4) Guled's notice designating record on appeal (unlimited civil case) filed with the trial court on January 3, 2022; and (5) Guled's application for extension of time to file brief (civil case) filed with this court on April 13, 2022.
The record on appeal does not include a copy of Guled's second amended complaint.
There are no documents in the record on appeal that demonstrate Guled filed any document with the trial court using the "West" designation for her San Ramon Avenue address. Guled has not directed our attention to any court document that she herself filed using the West San Ramon Avenue address. The only document she points to in support of her contention that the West San Ramon address "is the address [she] has always had on the court file" is a document that was sent to her by the trial court on July 21, 2021. Said document does not constitute written notice of a change of address as required under California Rules of Court, rule 2.200. Moreover, after July 21, 2021, Guled continued to file documents with the trial court (and this court) without using the "West" designation.
The record on appeal does contain a document entitled, "Fur[]ther Response to Special Interrogatories (Set 1)" (unnecessary capitalization & bold type omitted), which bears a "RECEIVED" stamp dated December 21, 2020. However, the record on appeal does not indicate or demonstrate who, or what entity, "RECEIVED" the discovery responses, and Guled does not cite to the discovery responses as a basis for contending she had the "West" San Ramon Avenue address on file with the court. "Civil discovery is intended to operate with a minimum of judicial intervention. '[I]t is a "central precept" of the Civil Discovery Act ... that discovery "be essentially self-executing." '" (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.) Typically, discovery responses are not filed with the trial court unless supportive of contentions in a related proceeding (e.g., law and motion proceedings). We cannot assume the "RECEIVED" stamp on Guled's discovery responses indicates receipt by the trial court. Even if it were received by the trial court, the record does not indicate it was "filed" with the court as contemplated under Code of Civil Procedure section 1013, subdivision (a), and it does not constitute a notice of change of address as required under California Rules of Court, rule 2.200.
Guled has failed to carry her burden of demonstrating error. Guled consistently filed documents with the trial court without using the "West" designation. Her initial complaint, and every amended complaint contained in the record on appeal omitted any reference to the "West" designation. Even after summary judgment was entered, Guled continued to file documents with the trial court (and with this court) without using the "West" designation for her address. To the extent she contends the "West" designation should have been used by Western Dental (even though she herself did not use the designation), Guled has failed to demonstrate she ever filed, and served on Western Dental, a notice of change of address using the "West" San Ramon Avenue address. As a result, Western Dental was entitled to continue serving Guled by mail using the San Ramon Avenue address without the additional "West" designation.
It is also notable that Guled has not provided this court with any explanation of why she continually filed documents with the trial court (and this court) without using the "West" designation in her address. The fact the USPS identifies the addresses as equivalent addresses, coupled with the fact Guled regularly used the 1784 San Ramon Avenue address, demonstrates the addresses are equivalent for mailing purposes.
We conclude Western Dental served Guled at the appropriate address, Guled was not denied due process, and the judgment must be affirmed. Having so determined, we need not consider whether Guled waived her argument(s) on appeal by appearing at the hearing on the summary judgment motion and arguing the merits of the motion.
DISPOSITION
The judgment is affirmed. Western Dental is awarded its costs on appeal.
WE CONCUR: LEVY, Acting P. J., DETJEN, J.