Stanford v. Sauceda
Filed 6/18/07 Stanford v. Sauceda CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
JANET STANFORD, Plaintiff and Appellant, v. LEO SAUCEDA, Defendant and Respondent. | A116767 (San Francisco County Super. Ct. No. CGC-06-457664) |
INTRODUCTION
Plaintiff Janet Stanford appeals in propria persona from a judgment of the San Francisco County Superior Court entering judgment against her and in favor of defendant Leo Sauceda, Personnel Officer for the City and County of San Francisco. The judgment followed the courts sustaining defendants demurrer to plaintiffs first amended complaint and plaintiffs failure to amend.[1] Appellant argues on appeal that the court erred in granting judgment in favor of the defendant on her complaint based upon the defendants negligence in refusing to hire her for a position as a 1426 Senior Clerk Typist with the City and County.
Defendant contends that plaintiff has failed to provide an adequate record for our review and consequently did not overcome the presumption of correctness of the trial courts ruling. Our review of the record before us persuades us that defendant is correct.
ANALYSIS
Our review of the adequacy of the record before us is informed by the standard governing appellate review of a judgment of dismissal after a demurrer is sustained without leave to amend. In such cases, appellate courts assume the truth of all facts properly pleaded by the plaintiff-appellant. [Citations.] [] Likewise, the reviewing court accepts as true all facts that may be implied or inferred from those expressly alleged [citations] and considers all evidentiary facts found in recitals of exhibits attached to the complaint [citation]. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) 8:136, pp. 8-83 to 8-84.) Notwithstanding erroneous and confusing labels attached by the pleader, appellate courts will examine the complaints factual allegations to determine whether they state a cause of action on any available legal theory. [Citations.] (Ibid.)
Even under these rigorous standards, the record here is inadequate. As defendant points out, plaintiff has failed to include in the record a copy of the demurrer, her response to the demurrer, or, most importantly, the first amended complaint to which the demurrer was sustained. Also missing are requests for judicial notice filed by defendant and plaintiff.
The clerks transcript contains the January 11, 2007 Order Sustaining Demurrer with leave to amend and the superior court forwarded to us a copy of the April 5, 2007 Order Granting Dismissal and Entry of Judgment. Stapled to the civil case information statement filed in this court on February 20, 2007 appears to be a document filed by plaintiff in the trial court on December 8, 2006, entitled Notice of Non-Response to Summons, followed by a judicial council form Cause of ActionGeneral Negligence. This latter form is not date-stamped and it gives no indication that it is an attachment to the first amended complaint to which the demurrer was sustained. If anything, this form may be an attachment to the original complaint filed on November 6, 2006. The first amended complaint was filed by plaintiff on November 27, 2006.
The documents and pleadings contained in the record here do not make up for those that are missing, particularly the first amended complaint, the demurrer and plaintiffs opposition thereto. It is axiomatic it is the appellants responsibility to provide an adequate record on appeal. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [to overcome presumption on appeal that an appealed judgment or order is presumed correct, appellant must provide adequate record demonstrating error]; Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 [burden on appellant to provide accurate record on appeal to demonstrate error; failure to do so precludes adequate review and results in affirmance of the trial courts determination]; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs[, supra,] 4:43, p. [4-11] [appellate record inadequate when it appears to show any need for speculation or inference in determining whether error occurred].) (Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire & Casualty Ins. Co. (2006) 136 Cal.App.4th 999, 1003-1004, fn. 1; accord, Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [sustaining motion to strike where record inadequate as not containing respondents motion to strike, plaintiffs opposition, and the courts order].)[2]
Clearly plaintiff has failed to provide a record that is adequate to permit review and has consequently failed to affirmatively show error.
DISPOSITION
The judgment is affirmed.
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Kline, P.J.
We concur:
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Lambden, J.
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Richman, J.
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[1]Plaintiff initially appealed from a January 11, 2007 order sustaining the demurrer (erroneously characterizing it as an order granting summary judgment). We initially dismissed the appeal as premature on March 22, 2007, and reinstated it on April 9, 2007 following entry of judgment by the trial court on April 5, 2007.
[2][I]t is settled that: 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. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.] (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
