Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BC402296 Rita Miller, Judge.
Jose Castaneda, in pro. per., for Defendant and Appellant.
Law Offices of R. Samuel Paz and R. Samuel Paz for Plaintiffs and Respondents.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
Defendant, Jose Castaneda, appeals from the March 24, 2010 default judgment entered against him. Because defendant has failed to provide an adequate record on appeal, the judgment is affirmed.
II. BACKGROUND
On November 17, 2008, plaintiffs Sonia Mercado, R. Samuel Paz and their law offices filed a verified complaint for injunctive relief and damages against defendant. The verified complaint asserted causes of action for libel per se, intentional infliction of emotional distress, and intentional interference with prospective economic advantage. In addition, plaintiffs requested a temporary restraining order and injunction prohibiting harassment.
Plaintiffs alleged that in 1996 they represented defendant’s mother in a case arising from the death of another son who was mentally ill and committed suicide while in custody at the Los Angeles County jail. The case was settled for $400,000 in June 1997. After disbursement, Mercado went with defendant’s mother and sister to the bank to identify defendant’s mother to the bank clerk and to confirm the validity of the check.
Plaintiffs further alleged that in May 2005, eight years after the representation, Mercado was subpoenaed to testify in a trial between defendant and another brother. Counsel questioned her regarding two checks dated in September and October 1996, which were made out to her and bore her apparent signature on the reverse side. Mercado testified the signature was similar to hers but she did not recall those particular checks.
Defendant allegedly became very angry that Mercado had testified in that trial and began to intimidate her by making harassing telephone calls to her office and sending her two letters stating, in part, “Once again, I resent your appearance at trial.” Defendant allegedly appeared unannounced at her office, harassed and stalked her and made menacing faces and gestures. In addition, he also harassed and annoyed other people such as her opposing counsel, other attorneys and colleagues, and politicians by sending or copying them on letters, e-mails and faxes about Mercado, accusing her of fraud, theft and taking advantage of the elderly by conspiring with a bank to steal client funds. Defendant also allegedly posted harassing and false statements on the Internet and through YouTube videos.
The trial court docket shows plaintiffs moved for default judgment on January 8, 2009 and February 19, 2009. On April 15, 2009, defendant moved to set aside the default which the court granted on May 5, 2009. On May 18, 2009, plaintiffs moved to compel responses to interrogatories, requests for admission and document production which the court granted on June 11, 2009. Plaintiffs again moved to compel discovery on July 2, 2009. On August 11, 2009, the trial court granted plaintiffs’ motion for terminating sanctions for defendant’s failure to comply with the court’s order. The trial court entered an order of default against defendant on September 2, 2009 and entered judgment on March 24, 2010.
Defendant timely filed his appeal on April 1, 2010.
III. DISCUSSION
This appeal is on a partial clerk’s transcript that omits pertinent documents filed in the trial court including plaintiffs’ motions to compel discovery and for terminating sanctions and the order striking defendant’s answer. On October 12, 2010, this court ordered the parties in their briefs to “discuss the effect of defendant’s failure to designate any of the relevant papers as part of the record.” Defendant did not supplement the record. Defendant’s failure to furnish an adequate record concerning an issue challenged on appeal requires that the issue be resolved against him. (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 366; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) “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.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
We deny defendant’s various requests for judicial notice filed on February 2, 2011, February 7, 2011, March 2, 2011, March 8, 2011 and March 14, 2011. Defendant’s motions fail to state “(A) [w]hy the matter noticed is relevant to the appeal; (B) [w]hether the matter to be noticed was presented to the trial court and, if so, whether judicial notice was taken by that court; and (C) [w]hether the matter to be noticed relates to proceedings occurring after the order or judgment that is the subject of the appeal” as required by Rule 8.252 of the California Rules of Court.
Moreover, defendant’s brief on appeal filed on January 5, 2011 contained no citations to the record. On January 5, 2011, this court struck defendant’s opening brief because it failed to cite the record as required by rule 8.204(a)(1)(C) of the California Rules of Court. On January 14, 2011, defendant filed another opening brief that inadequately cites to the clerk’s transcript and raises arguments on SLAPP law and First Amendment issues that were not presented to the trial court. Indeed, none of the issues raised by defendant address whether the trial court erred in striking defendant’s answer and entering a default judgment against him. An appellant’s brief must provide sufficient citations to the record to enable the court to verify the facts asserted. “Briefs must provide argument and legal authority for the positions taken; they may not rely upon matters which are not part of the record on appeal.” (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003-1004 & fn. 2.)
Beside deficiencies in the clerk’s transcript, there is no reporter’s transcript of the June 11, 2009 hearing on plaintiffs’ motion to compel discovery, the August 11, 2009 hearing on plaintiffs’ motion for terminating sanctions or of any other proceeding in this matter. It is defendant’s burden to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Defendant’s failure to designate an adequate record on appeal warrants affirmance of the judgment. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1141; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)
We deny plaintiffs’ motion to dismiss defendant’s appeal for failure to designate any of the “relevant papers” as part of the record and for failure to present argument or authority on the issue appealed because the arguments raised by plaintiffs have already been discussed. We also deny plaintiffs’ request for an order finding defendant a vexatious litigant because plaintiffs provide insufficient evidence for this court to determine whether defendant is a vexatious litigant under section 391 of the California Code of Civil Procedure.
IV. DISPOSITION
The judgment is affirmed. The parties are to bear their own costs.
We concur: ARMSTRONG, Acting P. J., MOSK, J.