Filed 12/19/18 Discountland, Inc. v. Freeny CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. (Retired judge of the Kern Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Law Offices of Olaf Landsgaard and Olaf Arthur Landsgaard for Defendants and Appellants.

Dake, Braun & Monje and Craig N. Braun for Plaintiff and Respondent.

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Appellants appeal from the judgment entered after the trial court granted respondent’s motion for summary judgment. The record is insufficient to establish any error in the judgment. We decline to grant appellants’ motion to augment the record on appeal and their motion for judicial notice of additional documents, both of which were filed with or after appellants’ reply brief and failed to offer any reason for the delay. Therefore, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants appeal from the judgment entered after the granting of respondent’s motion for summary adjudication. Their opening brief challenges the order granting respondent’s motion for summary adjudication, the order overruling appellants’ demurrer to respondent’s first amended complaint, and the order sustaining without leave to amend respondent’s demurrer to appellants’ first amended cross-complaint.

Appellants designated the record on appeal. After a 60-day extension, they filed their opening brief. The respondent’s brief pointed out inadequacies in the record on appeal, which made it difficult to understand and respond to appellants’ arguments. Appellants filed a reply brief that primarily asked this court to take judicial notice of five documents filed in the trial court in this case and five documents filed in a prior case between the same parties; it also asked this court to permit appellants to “re-designate and augment” the record to include another 16 documents the respondent’s brief identified as absent from the record.[1] The same day, appellants filed a motion for judicial notice of the same 10 documents described in the request for judicial notice in the reply brief. Eight days later, appellants filed a motion to augment the record, identifying the same 16 documents listed in the request for augmentation in the reply brief. Respondent opposed both motions. We deferred ruling on the motions and now consider them in connection with our consideration of the appeal on its merits.

DISCUSSION

I. Designated Record

“Within 10 days after filing the notice of appeal, an appellant must serve and file a notice in the superior court designating the record on appeal.” (Cal. Rules of Court, rule 8.121(a).) “If the appellant elects to use a clerk's transcript, the notice must … designate the documents to be included in the clerk’s transcript.” (Cal. Rules of Court, rule 8.121(b)(1)(B).) It is the appellant’s burden to affirmatively demonstrate error in the judgment. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) Accordingly, it is also the appellant’s burden to provide an adequate record to assess error. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.)

Appellants filed their notice of appeal on November 4, 2016. They belatedly filed their designation of the record on November 30, 2016, electing to proceed with a clerk’s transcript. The record as designated by appellants was filed on February 23, 2017.

II. Augmentation of Record

The record on appeal may be augmented to include omitted documents. “At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include: [¶] (A) Any document filed or lodged in the case in superior court.” (Cal. Rules of Court, rule 8.155(a)(1)(A).) In this court, however, “[a]ppellant should file requests for augmentation in one motion within 40 days of the filing of the record.… Thereafter, motions to augment will not be granted except upon a showing of good cause for the delay.” (Ct.App., Fifth Dist., Local Rules, rule 1(b).)

Augmentation is not a matter of right, but a matter within the court’s discretion. (Toenniges v. Griffeth (1959) 169 Cal.App.2d 717, 725 (Toenniges).) It is designed to correct minor omissions in the record, or to add documents later discovered to be necessary to the appellate decision. The rule permitting augmentation does not authorize a wholesale redesignation of the record after briefing has been completed.

In Russi v. Bank of America (1945) 69 Cal.App.2d 100 (Russi), the appellant timely designated the record, designating only a clerk’s transcript. (Id. at p. 101.) After briefing was complete and the matter set for oral argument, the appellant moved for augmentation of the record to include a reporter’s transcript of the oral testimony at trial. The court observed:

“Parties are encouraged to bring up only relevant matters on appeal and occasionally it will develop that there has been omitted from the record some paper, exhibit or portion of the oral proceedings. In such case it is desirable and proper upon a showing that the omitted material was relevant and that its omission was excusable, to bring it up in order that the appeal might be determined on an adequate record. But as has been correctly said: ‘Even where the matter sought to be added is proper, or the proposed correction is warranted, neither augmentation nor correction is a matter of right; they both may be denied for inexcusable neglect in preparing the record, for delay in presenting the application, or for other reasons.’ ” (Russi, supra, 69 Cal.App.2d at p. 102.)

The court noted it would be improper, unfair to the respondent, and a plain disregard of the rules to permit the appellant to change the type of record on appeal, long after his time for designating the record had expired. (Russi, supra, 69 Cal.App.2d at p. 101.) The court also rejected the appellants’ request for relief based on good cause. The parties had settled on the clerk’s transcript as the full transcript of the trial court proceedings, and had agreed to exclude any oral testimony. (Id. at p. 103.) Thus, it was plain that the “appellant was not taken by surprise, that it ha[d] not shown any excusable neglect, and that the omission was made purposely and voluntarily.” Consequently, good cause was not shown. (Ibid.)

In Toenniges, the appellants filed a request for augmentation of the record along with a petition for rehearing. (Toenniges, supra, 169 Cal.App.2d at p. 724.) Trial counsel for the appellants had filed the notice of appeal and designation of the record on appeal, which designated only a clerk’s transcript. Appellate counsel had presented the case as if the record included a reporter’s transcript; he did not realize the appeal was on the judgment roll until he read the appellate court’s opinion. (Ibid.) The court denied the augmentation request, concluding: “It is clear that one of the reasons for the absence of the complete record … was counsel’s failure to ascertain the state of the record when he took over from the attorneys who tried the case in the trial court. Such a state of facts does not appear to us to constitute excusable neglect, or good cause to grant the motion.” (Id. at p. 726.)

In Gelini v. San Francisco (1962) 199 Cal.App.2d 340, the appellant, in his closing brief, requested augmentation of the record to include all jury instructions that were requested but refused. (Id. at p. 348.) The request for augmentation was made two years after the original designation of the record. (Ibid.) The court denied the request, finding “[p]laintiff has made no showing nor offered any reason for what appears to be inexcusable delay.” (Id. at pp. 348–349.)

As one commentator notes: “The parties are expected to be diligent in initially preparing an adequate record and in seeking augmentation as soon as an omission in the record is discovered. Thus, a request for augmentation may be denied where the moving party fails to show surprise, excusable neglect, or good cause for any delay in seeking relief.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 5:132, p. 5-47.)

The record on appeal was filed on February 23, 2017. The 40-day time period within which to file a motion to augment expired on April 4, 2017. Appellants’ opening brief was filed on July 3, 2017. It challenged the trial court’s rulings on four matters: the demurrer to respondent’s first amended complaint, the demurrers to appellants’ original and first amended cross-complaints, and respondent’s motion for summary adjudication. In the statement of facts in their opening brief, when appellants discussed the demurrers, the motion, and the pleadings they addressed, instead of citing to documents that were filed in the trial court and included in the record on appeal, appellants cited almost exclusively to entries in the trial court’s register of actions, which do not include the contents of those documents. Thus, the absence of the necessary documents from the record on appeal must have been obvious during preparation of the opening brief. Nonetheless, appellants did not seek to augment the record to include the necessary documents before filing their opening brief. They did not move to augment until after respondent had filed its brief and pointed out the deficiencies in the record. Appellants have offered no explanation for their failure to designate a sufficient record at the outset; they have not demonstrated excusable neglect. They also have not explained the delay in moving to augment. They have not even attempted to show good cause for the delay.

In light of appellants’ unexplained failure to include a substantial number of necessary documents when they designated the record, as well as their failure to demonstrate good cause for the delay in moving to augment the record, we deny the motion to augment the record.

III. Judicial Notice

The appellate court must take judicial notice of “(1) each matter properly noticed by the trial court; and (2) each matter that the trial court was required to notice under Section 451 or 453.” (Evid. Code, § 459, subd. (a).) The appellate court has discretion to take judicial notice of matter specified in section 452. (Ibid.) Appellants’ request for judicial notice seems to be based on section 452, subdivision (d), which grants the court discretion to take judicial notice of court records.

“To obtain judicial notice by a reviewing court under Evidence Code section 459, a party must serve and file a separate motion,” which must state why the matter is relevant to the appeal, whether it was presented to the trial court, whether the trial court took judicial notice of the matter, and, if not, why the matter is subject to judicial notice. (Cal. Rules of Court, rule 8.252(a)(1) & (2).)

A. Documents filed in this case

Appellants request judicial notice of five documents filed in the action from which this appeal arises. These include the complaint, the first amended complaint, the first amended cross-complaint, a notice of related case, and the clerk’s transcript on this appeal. The clerk’s transcript in this appeal is, of course, already before this court. The remaining documents were all filed with the trial court; they could, and should, have been included in appellants’ designation of the clerk’s transcript on appeal if appellants wished to have them considered by this court in making its decision in this appeal.

“ ‘ “Matters that cannot be brought before the appellate court through the record on appeal (initially or by augmentation) may still be considered on appeal by judicial notice.” ’ ” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193.) These documents were filed with the trial court in this action. They could have been brought before this court timely by properly designating them as part of the clerk’s transcript on appeal. Alternatively, they could have been added to the record on appeal by bringing a timely motion to augment, if the documents were omitted from the original designation through mistake or excusable neglect.

Requests for judicial notice should not be used to circumvent appellate rules and procedures, including the normal procedures for designation and preparation of the record on appeal. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1064, overruled in part on another ground in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276; Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.) The appellate rules provide orderly procedures for designation of the record on appeal. These procedures are designed to establish the record on appeal before the briefing process, so all parties can base their briefing on the content of the record. Late requests to augment the record or take judicial notice of additional documents from the trial court’s files cause hardship to a respondent who has already completed and filed its brief. Because appellants have shown no reason for the failure to include these documents in the designated record, and no good cause for deviating from the normal procedures, we decline to take judicial notice of these documents, which should have been made part of the record on appeal through appellants’ original designation of the record.

B. Documents filed in a prior case

Appellants also request judicial notice of five documents from a prior action between the same parties (Discountland v. Freeny et al., Kern Super. Ct. No. 269951). These include the complaint in that action (filed Mar. 23, 2010), a peremptory challenge of Judge Chapin (the same judge who entered the judgment in the current action), respondent’s request for dismissal of the complaint in the prior action, the order striking respondent’s first amended cross-complaint, and the clerk’s transcript on appeal in the appeal of the prior action.

Under rule 8.252(a) of the California Rules of Court, the motion for judicial notice must state, among other things, “[w]hether the matter to be noticed was presented to the trial court and, if so, whether judicial notice was taken by that court.” Appellants’ motion does not contain this information.

“It is an elementary rule of appellate procedure that, when reviewing the correctness of a trial court’s judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered. [Citation.] This rule preserves an orderly system of appellate procedure by preventing litigants from circumventing the normal sequence of litigation.” (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) This rule is generally applied, in the absence of exceptional circumstances that would justify deviating from the rule. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; Ragland v. U.S. Bank National Assn., supra, 209 Cal.App.4th at p. 194.) Appellants have not established either that they presented the documents in issue to the trial court and it took judicial notice of them, or that exceptional circumstances justify taking judicial notice in this court even though the trial court did not do so.

Additionally, although rule 8.252(a) of the California Rules of Court does not specify a time frame for filing a motion for judicial notice in the reviewing court, diligence is an important consideration. “Although judicial notice may be requested at the time of briefing, ‘it is desirable in the interest of orderly judicial procedure’ to make the request well before the brief-filing stage.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 5:162, p. 5-64, italics omitted; see also Advisory Com. com., Cal. Rules of Court, rule 8.155 [“Whether the motion is made within a reasonable time and is not for the purpose of delay, however, are among the factors the reviewing court may consider in ruling on such a motion”].) Appellants have not shown good cause for the delay in requesting judicial notice of these documents until after respondent filed its brief.

For all these reasons, we deny appellants’ request for judicial notice.

IV. Merits

A. Demurrer to first amended complaint

Appellants’ opening brief challenges the trial court’s order overruling their demurrer to respondent’s first amended complaint. “A demurrer lies only for defects appearing on the face of the complaint or from matters of which the court must or may take judicial notice.” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) We review an order on a demurrer de novo; we deem to be true all material facts properly alleged in the challenged pleading. (Traders Sports v. City of San Leandro (2001) 93 Cal.App.4th 37, 43.) Thus, review of an order overruling a demurrer requires that we assess the allegations of the challenged pleading, and any matter of which judicial notice was taken by the trial court, to determine the sufficiency of the pleading.

The first amended complaint is not part of the record on appeal. We cannot assess the adequacy of its allegations. The order overruling the demurrer is also not included in the record; it would indicate whether the trial court took judicial notice of any matter. Consequently, the record is insufficient for review of the order overruling appellants’ demurrer to the first amended complaint.

B. Demurrers to cross-complaint and first amended cross-complaint

Appellants also challenge the orders sustaining respondent’s demurrers to appellants’ cross-complaint and first amended cross-complaint. Those pleadings are not part of the record. The demurrers, their supporting papers, any opposition papers, and the orders sustaining the demurrers are also not included in the record. The record is insufficient for review of the challenged orders.

C. Motion for summary adjudication

Appellants challenge the granting of respondent’s motion for summary adjudication of two causes of action of the first amended complaint. In reviewing the ruling on a motion for summary adjudication, we apply the same three-step analysis required of the trial court. (Truck Ins. Exchange v. Amoco Corp. (1995) 35 Cal.App.4th 814, 822.) “ ‘We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents’ claim and justify a judgment in the movant’s favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue.’ ” (Ibid.)

The record does not contain the operative pleading—the first amended complaint—or appellants’ answer to it; we cannot identify the issues framed by the pleadings. The record also does not include the motion for summary adjudication and its supporting papers, including the evidence relied on; it does not include appellants’ opposition papers, with the exception of three declarations that were apparently submitted in response to respondent’s motion. The order granting the motion is also absent from the record. Accordingly, we cannot determine on this record whether the moving papers established respondent’s entitlement to summary adjudication of the challenged causes of action or whether appellants raised any triable issues of material fact in response. The record is inadequate for review of the order granting the motion for summary adjudication.

Appellants have not established any reversible error in the judgment.

DISPOSITION

The judgment is affirmed. Respondent is entitled to its costs on appeal.

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HILL, P.J.

WE CONCUR:

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POOCHIGIAN, J.

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SMITH, J.