Opinion
C079352
08-24-2018
LARRY WIMBERLY, Plaintiff and Appellant, v. SHEILA KEARNEY et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34201300140551CUDFGDS)
Plaintiff Larry Wimberly sued the County of Sacramento, its child welfare agencies, and six of its employees for defamation. Defendants are the County of Sacramento (County), the former Sacramento County Department of Health and Human Services (now Sacramento County Department of Child, Family and Adult Services) (DHHS), the former department's Child Protective Services Division (CPS), Sheila Kearney, Yong Ueda, Lisa Boulger, Sheryl Matranga, Michelle Callejas, and Ann Edwards (collectively defendants).
Wimberly alleged the employees committed libel, slander, and other torts against him when, in dependency proceedings involving his children, they reported that the children and their caretaker said he raped his daughter and struck the children's mother while she was pregnant. Plaintiff alleged the defamation also occurred when one of the employees questioned him about the allegations in the presence of another person. He further alleged the entity defendants and the supervising employees were negligent in training and supervising the other employees.
Over plaintiff's objection, the trial court issued a protective order staying all discovery until the defendants obtained an order from the juvenile court authorizing their retained attorney to access the children's confidential case records. When the juvenile court issued its order and the trial court lifted the stay, defendants provided plaintiff with copies of the confidential records.
The trial court sustained defendants' demurrer to 15 of the 21 causes of action in plaintiff's second amended complaint with and without leave to amend. Plaintiff chose not to file a third amended complaint but to stand on the remaining causes of action. He also filed requests for entry of default due to defendants' purported failure to respond to those causes of action. The court clerk refused to enter the notices of default.
Ultimately, the trial court granted defendants' motion for summary judgment. It ruled the employees who published the allegations were immune from liability under the litigation privilege found at Civil Code section 47, subdivision (b), and all of the employees and the entity defendants were immune under statutory immunities provided to public agencies and their employees. (Gov. Code, §§ 815.2, 820.2, 820.8, 821.6.)
Plaintiff appeals from the judgment of dismissal. Appearing pro se, he contends (1) the trial court abused its discretion by granting the protective order; (2) the court clerk wrongly refused to enter his requests for default; (3) the court erred in sustaining the demurrer to his second amended complaint with and without leave to amend; and (4) the court erred in granting summary judgment because disputed issues of material fact exist and the defendants are not immune from liability.
We reject plaintiff's contentions and affirm the judgment.
FACTS
Plaintiff did not submit a complete record. Our statement of facts is based on evidence submitted to the trial court by defendants and allegations in plaintiff's second amended complaint.
Plaintiff is incarcerated serving a life sentence for rape and kidnapping. He is the father of three children, L.W., R.W., and I.W. The crimes for which his is incarcerated did not involve his children. (People v. Wimberly (Jan. 17, 2007, C045556) [nonpub. opn.].)
Following the death of the children's mother, the juvenile court in a dependency proceeding ordered DHHS to prepare recommendations for placement of the children and recommend whether plaintiff should have visitation with them.
Defendant Sheila Kearney, a DHHS social worker, interviewed David Matthews, who had been caring for the children. Matthews stated the children's mother told him that defendant raped R.W. and the child contracted syphilis from the rape. L.W. stated R.W. told her mother that father did something to her when she was about three years old. R.W. thought the incident happened when she was about one year old, and she remembered some of what happened.
I.W. told Kearney he did not know anything about his father doing something to R.W., but he said his mother told him that defendant pushed her down when she was pregnant with him.
Kearney spoke with plaintiff by telephone. A correctional officer allowed the two to speak via speaker-phone. Plaintiff contends the officer remained in the room with him and heard the conversation. Kearney asked plaintiff about the allegations of rape against R.W. Plaintiff denied the allegations and asked Kearney for proof supporting them. Kearney explained the rape allegation was not the current allegation before the juvenile court and did not need to be proven, but she could include statements in her reports of what others said and use them for supportive information.
Plaintiff contends Kearney threatened that if he did not consent to placing the children with Matthews, she would include the rape allegations in her report to the juvenile court. Kearny denied obtaining any testimony by duress, fraud, or undue influence, or conspiring with anyone against plaintiff.
In her report, Kearney recommended that the juvenile court not permit plaintiff to have visitation with his children, and she concluded plaintiff was not entitled to family reunification services. She based her conclusions in part on her interviews with Matthews, the children, and plaintiff, and their statements about the rape and the assault. Kearney's supervisor, defendant Lisa Boulger, reviewed and approved Kearney's report.
The juvenile court declared the children to be dependents and denied plaintiff visitation and reunification. The court set a hearing to determine custody for the children.
Defendant Yong Ueda, another social worker with DHHS, informed plaintiff by letter that she was assessing whether the court should appoint Matthews as the children's guardian. Plaintiff opposed the appointment. He claimed placing the children in Matthew's custody exposed them to a risk of mental, physical, and sexual abuse. He asked for the children to be placed in the care of his family members.
In response to plaintiff's concerns, Ueda conducted face-to-face interviews with the children and conducted a home visit with them at Matthews's home. The children were doing well and appeared happy. Each of them wanted to stay with Matthews.
Ueda recommended to the juvenile court that Matthews be appointed the children's legal guardian. Ueda's acting supervisor reviewed and approved the report on behalf of Ueda's supervisor, defendant Sheryl Matranga.
The juvenile court continued the matter and asked for further investigation. In response, Ueda again interviewed the children at Matthews's home. I.W. told Ueda that plaintiff had done "stuff" to his mother and R.W. His mother told him plaintiff punched her in the stomach when she was pregnant with him and pushed her down the stairs. Ueda included this information in an amended report to the court, and she continued to recommend that the court appoint Matthews as the children's legal guardian. Matranga reviewed and approved Ueda's report.
The juvenile court convened a trial on the matter. Ueda testified at trial about her investigation. She denied conspiring against plaintiff. At the conclusion of trial, the court declared Matthews to be the children's legal guardian, but it maintained dependency over them.
Plaintiff thereafter filed this action.
DISCUSSION
I
Protective Order
Plaintiff contends defendants obtained the protective order staying discovery by committing fraud upon the trial court, and the court abused its discretion in issuing the order. He also asserts the defendants violated the protective order and the disclosure order issued by the juvenile court granting access to the children's confidential case files.
A. Background
Plaintiff filed his original complaint on February 4, 2013. On September 9, 2013, plaintiff served requests for production of documents on DHHS and CPS and interrogatories on Kearney. The requests sought DHHS and CPS records concerning plaintiff's children, and the interrogatories concerned Kearney's actions in the dependency proceedings.
Defendants' retained counsel, Jonathan B. Paul, forwarded the discovery requests to defendants after receiving them. But Assistant County Counsel Tracy Lee informed him by phone that defendants could not furnish or discuss with him any information from the children's files until the juvenile court granted him access. Lee stated disclosing the confidential information without a court order was punishable by criminal and/or civil penalties.
Accordingly, Paul, on behalf of the County of Sacramento, petitioned the juvenile court to access and copy the children's case records in order to respond to the discovery requests. On September 17, 2013, Paul informed plaintiff he had initiated the petitioning process and could not respond to the discovery requests without gaining access to the records. He asked plaintiff for an open extension of time.
Receiving no response from plaintiff, Paul on September 20, 2013, filed a motion for a protective order to stay all discovery until the juvenile court ruled on his petition. Paul repeated county counsel's statement to him, and he declared that because the complaint arose from the individual defendants' involvement in the children's juvenile cases, unrestricted access to the children's files was necessary for the defendants to assess potential liability, defend in the litigation, and respond to the discovery requests.
Plaintiff opposed the motion for a protective order. He contended defendants were not acting in good faith and were seeking the order only to delay the case and withhold discovery.
The trial court issued the protective order. It found the order was warranted because the deadline to respond to the discovery requests was approaching, and county counsel had informed defense counsel that the individual defendants could not discuss the facts of the dependency cases with him until the juvenile court granted defendants' petitions for disclosure. The trial court stayed all discovery pending the juvenile court's ruling on the petitions. It also required defendants to file and serve a notice of the juvenile court's ruling when it was issued and to request the discovery stay be lifted.
On September 12, 2014, the juvenile court granted Paul's petition for access to the confidential records. The order authorized Paul to view all DHHS, CPS, and juvenile court documents concerning the children, but it prohibited him from copying any of the documents without an additional court order. It also prohibited Paul from giving the confidential information to anyone other than those persons specified in Welfare and Institutions Code sections 827 or 827.10. A parent is specified in the statutes as someone who may access the confidential records. (Welf. & Inst. Code, § 827, subd. (a)(1)(D).)
On October 28, 2014, and at defendants' request, the trial court lifted the stay on discovery and ordered defendants to provide responses to all discovery. The trial court excluded from this order any confidential documents that could not be provided without prior permission of the juvenile court. However, because plaintiff, as the children's parent, is authorized under Welfare and Institutions Code section 827 to obtain the children's confidential records, the defendants provided plaintiff with verified responses to the discovery requests and copies of the confidential documents on December 10, 2014.
We note that plaintiff asks us to take judicial notice of defendants' verified responses to the discovery and defense counsel's letter that accompanied the documents given to plaintiff. By making this request, plaintiff waives any argument that the documents may not be judicially noticed under Evidence Code section 452, and we grant his request pursuant to Evidence Code section 452, subdivision (h).
B. Analysis
1. Fraud on the court
Plaintiff claims defendants committed fraud on the court when they applied for the protective order. In their application, defendants indicated they were informed by assistant county counsel that the social workers would be unable to discuss the information from the children's case files until defense counsel had been granted access by the juvenile court. Plaintiff claims this assertion was false and consisted of hearsay, and that defendants made the assertion to influence the court and gain a tactical advantage over him.
Plaintiff also contends the motion for the protective order shows it was submitted in September 2012, nearly five months before he filed his original complaint. He alleges this shows the individual defendants had already discussed the case records with Paul before he petitioned the juvenile court for access.
To support his argument, plaintiff cites to a number of civil actions involving minors and the County as additional evidence where it appeared juvenile case records were discussed and where no one petitioned the courts for protective orders to stay discovery. Plaintiff also claims the fraud on the court, committed by Paul certifying the representations in the motion for protective order were true, denied him the opportunity to present his case.
Plaintiff's various arguments do not show defendants or Paul committed fraud on the court. First, plaintiff did not object to the introduction of county counsel's statement to Paul on the basis of hearsay. His failure to do so forfeits that argument here. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1361-1362.)
Second, plaintiff introduced no evidence indicating county counsel's statement was false. In fact, plaintiff cannot make this showing. County counsel correctly informed Paul that under state statute and juvenile court rule, the children's case files, including those maintained by DHHS and CPS, are confidential and the individual defendants could not disclose or discuss them without the juvenile court's authorization. (Welf. & Inst. Code, § 827, former subd. (a)(1)(P) [Stats. 2007, ch. 468 (S.B. 39), § 3], Sacramento Sup. Ct., Eighth Amended Order.) In light of the statutory requirement to obtain a court order, plaintiff cannot credibly assert defendants repeated county counsel's warning in their moving papers for the protective order only to improperly influence the trial court and gain a tactical advantage over him.
Third, plaintiff's assertion that Paul petitioned the juvenile court for access to the case records five months before plaintiff filed his complaint is incorrect. Plaintiff filed his original complaint on February 4, 2013. In their memorandum in support of the protective order, defendants initially stated they began the process of petitioning the juvenile court on September 17, 2013, but they later stated they began the process on September 17, 2012. Any confusion is easily overcome by reviewing Paul's supporting declaration, in which he declared under penalty of perjury he began the petitioning process on September 17, 2013. There is thus no evidence the individual defendants unlawfully discussed the children's cases with Paul before the juvenile court authorized disclosure.
Fourth, plaintiff's reliance on other cases involving juveniles where the County was a party is irrelevant. He speculates the County did not request a protective order to stay discovery in those cases, but he does not establish that assertion to be true or that it was a litigated issue. One case he cites from this court, Ortega v. Sacramento County Dept. of Health and Human Services (2008) 161 Cal.App.4th 713, 726, did not even concern whether the County could disclose confidential records without needing a protective order. Rather, it concerned a CPS worker's failure to obtain a confidential CPS file before returning the child to the parent, who then attempted to murder the child. Plaintiff's reliance on these cases is irrelevant, as he cites no law that authorized the defendants' retained attorney in this action to access the children's case files without an order from the juvenile court.
Fifth, plaintiff does not explain how defendants' motion for a protective order denied him the ability to present his case. While the protective order delayed discovery, it did not preclude plaintiff from discovery after the stay was lifted. Plaintiff argues it was defendants' "plan and scheme for plaintiff not to see the true statements made by the minor children" that would have been contained in the confidential files. The contention is spurious. Even during the stay, plaintiff had access to the children's case files, as the statute granted him access as the children's parent. (Welf. & Inst. Code, § 827, subd. (a)(1)(D).) He did not need discovery to read the children's files, and the defendants ultimately gave them to him.
There is no evidence defendants committed fraud upon the court when they sought the protective order.
2. Abuse of discretion
Plaintiff contends the trial court abused its discretion when it approved the protective order. He asserts the court abused its discretion by relying on hearsay and a fraudulent representation of the facts and law to grant the motion. We have just rejected those arguments. Plaintiff further contends the court abused its discretion because its protective order was overbroad, halting discovery not only of confidential information, but also of the County's policies, procedures, and regulations that were not confidential.
Defendants do not respond to this contention, but we find no error. When the court lifted the discovery stay, Paul informed plaintiff that CPS did not maintain their policies in print format; instead they were kept as electronically-stored information. Paul had in his possession a thumb drive containing the policies that he was willing to make available to plaintiff immediately. However, he could not mail the thumb drive to him because it was considered by prison officials to be contraband. Paul asked plaintiff either to contact his correctional counselor to arrange for a way to review the policies, or to direct Paul to a copy vendor through whom plaintiff could arrange billing to print and provide him the documents. There is no indication in the record that plaintiff responded to Paul's proposed solutions. Thus, the information plaintiff asked to discover was made available to him, but he decided not to pursue obtaining it. He cannot claim the trial court denied him an opportunity to prepare his case when he chose not to receive the discovery he requested.
3. Violation of the orders
Plaintiff asserts defendants violated the juvenile court's disclosure order by failing to petition that court for permission to copy the juvenile records. The order stated copying would require an additional order, and plaintiff contends defendants had an obligation to secure the copying order. He cites no authority imposing this obligation, and we are aware of none.
Plaintiff also claims the evidence shows defendants disclosed confidential documents in violation of the protective order by forwarding copies of the documents to him. He argues this shows the protective order's sole purpose was to delay discovery. He is mistaken. Both the trial court and the juvenile court stated that only those persons not authorized under Welfare and Institutions Code sections 827 and 827.10 could not receive the confidential information. Those statutes expressly allow plaintiff, as the juveniles' parent, to receive copies of the juveniles' case files and the files held by the child welfare agency. (Welf. & Inst. Code, §§ 827, subd. (a)(5); 827.10, subd. (a)(2).) Accordingly, defendants gave plaintiff copies of the confidential records. That disclosure was not in violation of the protective order.
We reject plaintiff's arguments arising from the protective order and the disclosure order.
II
Requests for Default
Plaintiff filed requests to enter default against the individual defendants, but the court clerk refused to enter them. Plaintiff contends the court erred because defendants had not timely responded to some of his causes of action and were in default.
A. Background
The trial court sustained defendants' demurrer to plaintiff's first amended complaint with leave to amend. It gave plaintiff until December 5, 2013, to file a second amended complaint. Plaintiff failed to do so.
Defendants moved to dismiss the entire action. The trial court denied the motion because plaintiff did not receive notice of its ruling on the demurrer until after the time to file an amended pleading had passed. The court gave plaintiff until March 4, 2014, to file a second amended complaint, and it required defendants to serve their response to the amended complaint within 20 days afterward.
Plaintiff filed a second amended complaint on March 3, 2014. The complaint contained 21 causes of action. Although plaintiff alleged in six causes of action the defendants acted negligently and intentionally and knowingly in 15 of the causes of action, he used the Judicial Council-approved form for pleading general negligence for each of his causes of action. Defendants timely filed a demurrer against the 15 intentional tort causes of action. On June 5, 2014, the trial court sustained the demurrer with and without leave to amend. The court stated: "The essence of negligence is carelessness or inadvertence. Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890.
"The conduct alleged in the [second amended complaint] is not careless or inadvertent, but intentional, as defendants are alleged to have acted intentionally, deliberately or knowingly.
"The demurrer to the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 15th, and 19th causes of action is therefore sustained, with leave to amend. Plaintiff shall file a Third Amended Complaint alleging two Intentional Torts of slander and libel, together with the remaining negligence causes of action (14th, 16th, 17th, 18th, 20th, and 21st) only, not later than Monday, June 30, 2014. The responsive pleading is due filed and served not later than 20 days thereafter."
Plaintiff did not file a third amended complaint. Instead, on June 23, 2014, he filed requests for entry of default against each defendant on the six remaining negligence causes of action. The trial court had given defendants 20 days to respond to the second amended complaint, and plaintiff argued the defendants' failure to respond to the six negligence causes of action within those 20 days was the equivalent of a failure to appear after being served, entitling him to default judgments on those six counts.
The court clerk refused to enter the requested defaults. The clerk explained default could not be entered because all of the parties had responded by way of demurrer.
On July 14, 2014, defendants moved to dismiss the second amended complaint because plaintiff did not file a third amended complaint by June 30, 2014, as ordered by the court. On July 18, 2014, defendant again filed requests for entry of default on the six negligence causes of action from the second amended complaint. The court clerk again declined to enter the requests because defendants had already demurred to the second amended complaint and plaintiff was to have filed a third amended complaint.
On August 12, 2014, the trial court denied defendants' motion to dismiss. It did so because plaintiff apparently had decided to proceed against defendants only on the six remaining negligence causes of action. It ordered defendants to serve their answer to those causes of action no later than August 22, 2014. It also held the court clerk had correctly rejected as premature plaintiff's requests for entry of default.
B. Analysis
Plaintiff contends the court clerk erred in refusing to enter defaults against defendants on the six remaining negligence claims. He is incorrect. Defendants were never in default. A defendant need not file a demurrer to the entire complaint in order to avoid a default judgment. He may file a demurrer against specific causes of action. (Cal. Rules of Court, rule 3.1320(a).) If he files a demurrer against some, but not all, of the causes of action, he is not required to answer the other causes of action at that time. (Cal. Rules of Court, rule 3.1320(b).) And while the demurrer is pending, the plaintiff cannot obtain a default judgment against the defendant on the unanswered causes of action. (Code Civ. Proc., § 585, subd. (b).) If the court sustains the demurrer with leave to amend, the defendant has 10 days from the expiration of the time to amend to answer the remaining causes of action unless the court orders otherwise. (Cal. Rules of Court, rule 3.1320(j).)
Plaintiff attempted to file his requests for default on the six negligence causes of actions before defendants were required to answer them. The trial court gave defendants 20 days to respond to the second amended complaint. Defendants timely responded by filing a demurrer to 15 of the 21 causes of action alleged in the complaint. While the demurrer was pending, defendants were not required to respond to the six remaining negligence actions. The court sustained the demurrer to the second amended complaint on June 5, 2014. It allowed plaintiff until June 30, 2014, to file a third amended complaint.
As the rules of court authorized it to do, the trial court gave defendants 20 days to respond to the third amended complaint. In other words, assuming plaintiff filed the third amended complaint on June 30, 2014, or did not file an amended complaint at all, defendants had until July 20, 2014, to respond to the six negligence causes of action.
Plaintiff filed his requests for default on June 23 and July 18, 2014. Because he did not file a third amended complaint, defendants had until July 20, 2014, to respond to the negligence causes of action. In fact, defendants responded on July 14, 2014, by filing a motion to dismiss. When the trial court denied that motion, it ordered defendants to answer the negligence causes of action by August 22, 2014. Defendants answered them on August 21, 2014. Thus, at no time were defendants in default. The court clerk correctly refused to enter plaintiff's requests for default.
Plaintiff claims the court's order directing him to file a third amended complaint and informing him what amended causes of action he could include in the complaint interfered with his ability to obtain a default because the court wrongly sustained the demurrer against his second amended complaint. He asserts the order to file a third amended complaint placed "a barrier that deprived [him] of a judgment as a matter of law." The court did this, plaintiff contends, because it was biased and wanted to give defendants "a second bite of the apple to correct it's [sic] deliberate and intentional failure to appear."
This argument need not detain us long. The court's order sustaining the demurrer as to the second amended complaint did not deny plaintiff a judgment to which he was entitled on the six causes of action. Plaintiff as a matter of law was not entitled to a judgment on those claims because defendants were never in default. Plaintiff's unsupported allegation that the trial court sustained the demurrer to the second amended complaint with and without leave to amend due to bias is worthy of sanctions.
III
Sustaining of Demurrer
Plaintiff contends the trial court erred when it sustained defendants' demurrer to his second amended complaint with and without leave to amend. He claims he alleged sufficient facts in the 15 dismissed causes of action to survive the demurrer.
The trial court did not abuse its discretion in sustaining the demurrer. Plaintiff pleaded all of his defamation claims as causes of action in negligence. The court rightly found that to be error, but it did not eliminate those claims. It granted plaintiff leave to file a third amended complaint consisting of his remaining negligence causes of action and two causes of action for the intentional torts of slander and libel. In effect, the court held plaintiff had stated claims for slander and libel; he needed just to plead them correctly. Plaintiff chose not to do so.
In addition to the slander and libel causes of action, plaintiff alleged the individual defendants committed computer fraud by accessing the County's computer system to generate the defaming reports they filed with the juvenile court. He argues the computer fraud allegations established an "independent, communicative, noncommunitive [sic], wrongful act" outside the protections of "Penal Code section 47(b)."
"Penal Code section 47(b)" does not exist. Most likely, plaintiff is referring to Civil Code section 47, subdivision (b), the litigation privilege (section 47(b)). He contends that statute does not privilege the defendants' statements because they were false and defamatory, and defendants intended to use the court to punish him and accomplish their "unlawful" goals.
Plaintiff's attempt to redeem his fraud claims by arguing they are outside the scope of section 47(b) is misplaced. Indeed, that statute prevents plaintiff from stating tort claims against the individual defendants in this circumstance as a matter of law. "Section 47 establishes a privilege that bars liability in tort for the making of certain statements. Pursuant to section 47(b), the privilege bars a civil action for damages for communications made '[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate],' with certain statutory exceptions that do not apply to the present case. The privilege established by this subdivision often is referred to as an 'absolute' privilege, and it bars all tort causes of action except a claim for malicious prosecution." (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.)
The privilege applies "without respect to the good faith or malice of the person who made the statement, or whether the statement ostensibly was made in the interest of justice . . . ." (Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 361.) It applies even though it may result in providing immunity to the " 'malignant slanderer.' " (Tiedemann v. Superior Court (1978) 83 Cal.App.3d 918, 925.)
The privilege does not apply just to statements made in a courtroom. It also applies to statements made in preliminary conversations and interviews in preparation for a judicial or quasi-judicial proceeding. (Imig v. Ferrar (1977) 70 Cal.App.3d 48, 55-57 [privilege applied to citizen's complaint to police department of officer misconduct that resulted in investigation]; Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865 [potential witness's statements in an interview in preparation for a hearing before a hospital district board were privileged].)
The privilege applies here to the statements the individual defendants made concerning plaintiff and their use of the County's computer system to make them. Contrary to plaintiff's argument, section 47(b) protects allegedly untruthful statements made in connection with a judicial proceeding such as the juvenile court's proceedings concerning plaintiff's children. As a result, plaintiff cannot recover against the individual defendants. The trial court correctly sustained the demurrer to the second amended complaint.
IV
Summary Judgment
Plaintiff contends the trial court erred in granting defendants' motion for summary judgment. He contends defendants' separate statement is void of material facts warranting summary judgment, the defendants were not entitled to immunity as a matter of law, they violated his federal constitutional rights, they shredded documentary evidence in violation of Brady v. Maryland (1963) 373 U.S. 83 , and he established disputed issues of material fact. Plaintiff, however, did not submit an adequate record for us to determine the propriety of the court's ruling.
Plaintiff bears the burden as the appealing party to demonstrate reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655.) We presume a trial court's judgment is correct. (Silva v. See's Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 260.) An appellant must overcome this presumption "by presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited." (Keyes v. Bowen, supra, 189 Cal.App.4th at p. 655.)
Plaintiff elected to proceed with a clerk's transcript on appeal. The only documents from the summary judgment motion that he requested be included in the transcript were the court's ruling and his "Objection and Opposition To Summary Judgment, Declaration and Separate Statement of Undisputed Facts." (Cal. Rules of Court, rule 8.122.) We find in the record only his separate statement and an "Objections and Opposition" with exhibits.
Plaintiff included the two declarations defendants filed in support of their motion as exhibits to his objections, but he did not include the other documents defendants filed in support of the motion: a separate statement, a memorandum of points and authorities, a reply memorandum of points and authorities, a reply to plaintiff's separate statement, a reply to his objections, objections to his evidence, and an opposition to a request for judicial notice filed by plaintiff. Plaintiff also did not include in the record some of the documents he filed in opposition to the motion: his declaration, a response to defendants' separate statement, a request for judicial notice, and another objection and opposition to the motion that was timely filed. He also did not include a reporter's transcript of the hearing.
By failing to provide an adequate record for appellate review, plaintiff forfeited his contentions on appeal regarding the merits of summary judgment. (See Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039.) We cannot say the trial court's grant of summary judgment was erroneous if we are unable to review the papers in support of and opposition to the motion. (See Ballard v. Uribe, supra, 41 Cal.3d at pp. 574-575.)
Plaintiff's status as self-represented litigant does not excuse his failure to provide an adequate record. "[M]ere self-representation is not a ground for exceptionally lenient treatment." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) "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." (Id. at p. 985.)
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants. (Cal. Rules of Court, rule 8.278(a).)
HULL, Acting P. J.
We concur:
MAURO, J.
HOCH, J.