Opinion
A131902
01-31-2012
SANTOS PENA et al., Plaintiffs and Appellants, v. CALIFORNIA HIGHWAY PATROL, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Mateo County County Super. Ct. No. CIV489705)
Santos and Lilly Pena (appellants) appeal from a summary judgment entered in favor of respondent California Highway Patrol (CHP) in an action for the wrongful death of their son, who was killed in a collision with a CHP vehicle while being pursued in a police chase. The trial court concluded that the CHP was immune from liability under Vehicle Code section 17004.7, subdivision (b), which conditionally grants immunity to public agencies "for civil damages for personal injury to or death of any person . . . resulting from the collision of a vehicle being operated by [a fleeing suspect]" in a pursuit by a peace officer. We dismiss the appeal, as appellants have failed to provide the record necessary for proper consideration of the issues they raise.
All statutory references are to the Vehicle Code unless otherwise indicated.
DISCUSSION
Appellants' primary contention on appeal is that the trial court erred in concluding the CHP is entitled to judgment as a matter of law because section 17004.7 was designed to provide immunity for injuries a fleeing suspect causes to third parties, not injuries a peace officer negligently causes a fleeing suspect. (See Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [summary judgment is proper if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law].) Their opening brief relies almost entirely, however, on facts outside the record, in violation of the California Rules of Court. (See Cal. Rules of Court, rules 8.204(a)(2)(C) [appellant's opening brief must "[p]rovide a summary of the significant facts limited to matters in the record"], 8.204(a)(1)(C) [briefs must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].) An appellant's failure to comply with the rules of court may, in our discretion, result in dismissal. (See Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)
We conclude that such disposition is appropriate and, indeed, necessary in this case, as appellants' failure to provide record support for their assertions is a symptom of a more fundamental defect: the absence of a record that establishes the basic facts and procedural underpinnings of their appeal. The sparse record they have provided not only fails to satisfy their burden to demonstrate error; it precludes review of the error they assert. The Appellants' Appendix consists of the trial court's order and notice of entry, the notice of appeal and record designation, and an incomplete register of actions; it does not include the papers in support of and in opposition to the summary judgment motion at issue—most notably, the parties' evidence and statements of undisputed and disputed material facts. Moreover, the trial court's order indicates that it sustained the CHP's objections to appellants' evidence and granted an unspecified request for judicial notice, but neither of these documents appears in the record. We are unable to identify the evidence and arguments that were before the trial court, the facts in dispute, or even the causes of action and allegations asserted. (See Cal. Rules of Court, rules 8.124(b)(1)(B) [appellant's appendix must contain trial court documents and exhibits that are "necessary for proper consideration of the issues"], 8.122(b)(3).) This deficiency is not remedied by resort to the assertions in appellants' briefs that are unsupported by record citation. We may not consider facts outside the record. (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 845, fn. 6; Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 ["if it is not in the record, it did not happen . . ."].)
On appeal, we presume that the judgment is correct and indulge all intendments and presumptions to support it regarding matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; accord, Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Appellants have the burden to overcome the presumption of correctness by providing an adequate record that affirmatively demonstrates error. (See Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859-860.)
We conclude, accordingly, that inadequacy of the record warrants dismissal of this appeal. (See In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498; Ehman v. Moore (1963) 221 Cal.App.2d 460, 463 ["Where the appellant fails to provide the reviewing court with a record enabling it to review and correct alleged errors, the appeal will be dismissed"]; accord Webman v. Little Co. of Mary Hospital (1995) 39 Cal.App.4th 592, 595.)
We note, as a final matter, that appellants have requested oral argument, pursuant to a notice sent by the clerk as a matter of course when the appeal was fully briefed. In light of our disposition dismissing the appeal on procedural grounds, appellants have no right to oral argument, and it would serve no purpose in this case, as it is limited to matters supported by the record. (See Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871 [right to argue a cause orally before the reviewing court exists in any appeal that is considered on the merits and decided by a written opinion].)
DISPOSITION
The appeal is dismissed, with costs to the CHP.
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Jenkins, J.
We concur:
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McGuiness, P. J.
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Siggins, J.