Marquez v. Allstate Ins. Co.
Filed 7/29/13 Marquez v. Allstate Ins. Co. CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
OLIVIA
MARQUEZ et al.,
Plaintiffs and Appellants,
v.
allstate insurance co. et al.,
Defendants and Respondents.
B238703
(Los Angeles County
Super. Ct. No. KC059808)
APPEAL
from a judgment of the Superior Court of
County, Salvatore T. Sirna, Judge. Affirmed.
Combs
& Schaertel and Arthur T. Schaertel for Plaintiffs and Appellants.
McKenna
Long & Aldridge, Peter H. Klee and Theona Zhordania for Defendant and
Respondent Allstate Insurance Company.
introduCTion
Plaintiffs and appellants Olivia
Marquez and Bridgette Angulo appeal from the trial court’s order granting a
special motion to strike under Code
of Civil Procedure section 425.16 (section 425.16) filed by respondent
Alexander Haus. However, they failed to
provide this court with any of the relevant pleadings upon which the trial
court based its decision. Accordingly,
we presume that the trial court’s decision was correct and affirm the judgment.
fACTual and procedural background
Appellants filed suit against
defendants and respondents Allstate Insurance Company and Allstate Indemnity
Company (collectively Allstate) as well as Allstate employees Alexander L.
Haus, Shirley Y. Komura, and Edward M. Liddy.
Haus, who was in-house counsel for Allstate, had represented Allstate
during a prior arbitration with appellants, who sought coverage by Allstate for
injuries they suffered in an accident involving an uninsured motorist. As to Haus, the original complaint and the
subsequent first amended complaint alleged causes of action for
intentional misrepresentation, and negligence.
The trial court sustained demurrers to
the first amended complaint, and appellants filed a second amended complaint
(SAC). Haus filed an anti-SLAPP motion
in response to the SAC, which the court granted on November
16, 2011. The court found that appellants’ claims
against Haus were premised entirely on his representation of Allstate during
the arbitration proceeding, which
constituted an “official proceeding authorized by law†pursuant to section
425.16, subdivision (e)(2). Therefore,
Haus had satisfied his burden to show that appellants’ causes of action fell
within the class of suits subject to a special motion to strike. Further, appellants had not established a
probability that their claims would prevail on the merits.
This appeal followed.
discussion
We review a trial court’s ruling on a
motion to strike under section 425.16 de novo by “conducting an independent
review of the entire record.
[Citations.]†(
(2004) 118 Cal.App.4th 204, 212.) In
this case, however, we are unable to conduct such a review, because appellants
failed to furnish (1) the SAC, which was the operative complaint and the subject
of the special motion to strike; (2) the motion to strike itself; (3) any
exhibits and declarations in support of that motion; (4) appellants’
opposition to that motion; and (5) any reply by Haus in support of the motion
to strike.
“A fundamental principle of appellate
practice is that an appellant ‘“must affirmatively show error by an adequate
record. . . . Error is never presumed. .
. . ‘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. . .
.’†[Citation.]’ [Citations.]â€
(Null v. City of Los Angeles
(1988) 206 Cal.App.3d 1528, 1532-1533; see Christie
v. Kimball (2012) 202 Cal.App.4th 1407, 1412 [“We cannot presume error from
an incomplete record.â€]; Protect Our
Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 [“When practicing
appellate law, there are at least three immutable rules: first, take great care to prepare a complete
record; second, if it is not in the record, it did not happen; and third, when
in doubt, refer back to rules one and two.â€].)
It is neither this court’s nor respondent’s responsibility to locate and
furnish the documents necessary to consider the parties’ arguments on
appeal. (State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th
1525, 1528-1529, fn. 1.) Rather,
appellants have the burden to assure that the record on appeal is sufficient to
resolve the issues raised. (
1295.)
Appellants note that counsel for
appellants notified the court that the SAC was not in the court file and did
not appear on the docket. They argue
that because this complaint is missing from the court file, they did not have
the obligation to designate it and provide it in the appellate record.
so that the clerk could not have included it in the clerk’s transcript, the
appellant must file a motion for augmentation of the record, attaching a copy
of the document. (Cal. Rules of Court,
rule 8.155 [“(1) 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. . . .
[¶] (2) A party must attach to its motion a copy, if
available, of any document or transcript that it wants added to the
record.â€].) Although appellants
acknowledged below that they possessed a conformed, file-stamped copy of the
SAC, they neglected to file a motion to augment the record to include it.
Because appellants have failed to
provide us with the key pleadings on which the trial court based its decision
to grant the special motion to strike, we cannot conduct the necessary review,
and instead presume that the trial court reached the correct decision based on
the facts and arguments presented to it.
disposition
The judgment is
affirmed. Appellants to bear costs and
attorney fees on appeal, in amounts to be determined by the trial court.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
name="_ftn1" title="">[1] Appellants do not address the reason
that they failed to designate the other key pleadings omitted from the clerk’s
transcript, other than to suggest, erroneously, that respondent should have
done so.
name="_ftn2" title="">[2] Although appellants’ notice of appeal
indicates that appellants are solely appealing the grant of the special motion
to strike, and their brief likewise indicates that they are appealing from this
order, they also argue in cursory fashion that the trial court should not have
decided a motion for summary judgment brought by another respondent, Allstate,
because appellants’ filing of the notice of appeal divested the trial court of
jurisdiction to decide the summary judgment motion. Because appellants failed to appeal the grant
of summary judgment in favor of Allstate, and failed to include in the record
any of the pleadings relevant to the summary judgment motion, we do not
consider this issue.
In addition,
appellants also suggest in their reply brief that because the SAC does not
exist in the court file, it was reversible error to make any rulings based on
that complaint, including the granting of demurrers, the anti-SLAPP motion,
summary judgment, and attorney fees. We
do not consider arguments raised for the first time in a reply brief. (Estate
of Bonzi (2013) 216 Cal.App.4th 1085, 1106 fn. 6.) Moreover, appellants cite no authority that
would support the meritless proposition that, when documents are missing from a
court file, the orders and judgments to which they relate are void.
