Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and an order of the Superior Court of Los Angeles County No. YC058424, William G. Willett, Judge.
Tom McVeigh, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Robert L. Mukai, Senior Assistant Attorney General, Sara J. Drake and William L. Williams, Jr., Deputy Attorneys General, for Defendant and Respondent.
JACKSON, J.
BACKGROUND
Plaintiff Tom McVeigh (McVeigh) instituted this action against defendant California State Lottery Commission (CSLC) on October 31, 2008. Inasmuch as McVeigh’s complaint is not part of the record on appeal, the precise allegations of his complaint are a mystery. We have been able to discern from other documents in the record, however, that this action involves a challenge to the legality of the California Lottery Scratchers game (Scratchers) and that McVeigh sought an injunction enjoining the distribution of Scratchers and a declaration that the Scratchers violate state gaming laws, particularly Penal Code sections 330b, 330c and 330.1.
On November 12, 2008, McVeigh filed a motion for a preliminary injunction, seeking an order enjoining CSLC “from expending money for purchasing and distributing California State Lottery Scratcher tickets.” On December 24, the trial court denied McVeigh’s motion for a preliminary injunction, finding “that plaintiff has failed to submit competent admissible evidence of an irreparable harm to support issuance of the requested injunctive relief.” On January 14, 2009, McVeigh filed a notice of appeal from the order denying his motion for a preliminary injunction.
On February 19, 2009, the trial court sustained CSLC’s demurrer to the complaint without leave to amend, concluding that “under the California State Lottery Act of 1984 (Gov. Code, § 8880 et seq.), the ‘Scratchers game’ is an approved form of lottery that may be lawfully played. (See Gov. Code, § 8880.2.)” The court thereafter dismissed McVeigh’s complaint with prejudice. McVeigh appealed from the judgment of dismissal.
McVeigh’s notice of appeal from the judgment of dismissal was filed prematurely on February 2, 2009. Pursuant to California Rules of Court, rule 8.308 we “treat the notice as filed immediately after the rendition of judgment or the making of the order.”
DISCUSSION
Order Sustaining Demurrer
McVeigh contends the trial court erred in sustaining CSLC’s demurrer to his complaint. As previously noted, the complaint is not part of the record on appeal, making it impossible for us to determine if it states a cause of action. Inasmuch as McVeigh has failed to provide us with an adequate record from which we can review the propriety of the trial court’s ruling (Bains v. Moores (2009) 172 Cal.App.4th 445, 476 and fn. 42), his contention that the trial court erred in sustaining CSLC’s demurrer must be resolved against him. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
Also missing from the appellate record are the reporter’s transcripts of the hearing on McVeigh’s motion for a preliminary injunction and the hearing on CSLC’s demurrer.
Order Denying Plaintiff’s Motion for Preliminary Injunction
As this court observed in MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618 at page 623, “[a] preliminary injunction is an interim remedy designed to maintain the status quo pending a decision on the merits. [Citation.] It is not, in itself, a cause of action. Thus, a cause of action must exist before injunctive relief may be granted. [Citation.] Accordingly, where the complaint fails to state a cause of action an order granting a preliminary injunction must be reversed. [Citation.]” (Accord, Korean American Legal Advocacy Foundation v. City of Los Angeles (1994) 23 Cal.App.4th 376, 398-399.)
In this case, the trial court denied McVeigh’s motion for a preliminary injunction, after which the court sustained CSLC’s demurrer to McVeigh’s complaint and dismissed the action. Our decision to affirm the judgment of dismissal renders McVeigh’s appeal from the order denying his motion for a preliminary injunction moot. (MaJor v. Miraverde Homeowners Assn., supra, 7 Cal.App.4th at p. 623.)
DISPOSITION
The judgment of dismissal is affirmed. The appeal from the order denying the motion for preliminary injunction is dismissed. CSLC is awarded its costs of appeal.
We concur: WOODS, Acting P. J., ZELON, J.