Filed 3/26/18 Wager v. The Assembly Team, LLC CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


JACKIE LYNN WAGER,

Plaintiff and Appellant,

v.

THE ASSEMBLY TEAM, LLC,

Defendant and Respondent.


G053975

(Super. Ct. No. 30-2015-00783576)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James L. Crandall, Judge. Affirmed.
Jackie Lynn Wager, in pro. per., for Plaintiff and Appellant.
Wilson Elser Moskowitz Edelman & Dicker and Ian Stewart for Defendant and Respondent.




Jackie Lynn Wager appeals from a judgment of dismissal after an order sustaining a demurrer. Finding no error, we affirm.
FACTS
In 2012, Wager was injured when the left pedal of her bicycle allegedly snapped off. Wager initiated litigation against The Assembly Team, LLC (Assembly Team), among others, in April 2014, Superior Court of Orange County case No. 30-2014-00718082 (the prior action). Wager alleged Assembly Team negligently assembled her bicycle, thereby causing her injuries. Assembly Team demurred to the complaint as untimely, and the trial court sustained the demurrer without leave to amend. The court entered a final judgment dismissing the action with prejudice.
Wager then filed another complaint against Assembly Team in April 2015, alleging breach of the implied warranty of merchantability. As in the prior action, Wager claimed Assembly Team failed to properly assemble and inspect her bicycle.
Wager filed a first amended complaint in January 2016 (FAC). Wager’s FAC relied on the same allegations as the initial complaint, but added a claim for breach of the “implied warranty of fitness,” as well as some additional details. Assembly Team demurred to the FAC. Assembly Team’s demurrer was based on the fact that Wager’s action was barred by res judicata. The trial court took judicial notice of pleadings in the prior action and concluded the final judgment in the prior action precluded Wager from re-litigating Assembly Team’s liability for the bicycle accident. The court sustained the demurrer to the FAC with leave to amend.
Wager filed her second amended complaint (SAC), alleging the same claims with additional details as to the accident and her injuries. The court sustained Assembly Team’s demurrer to the SAC on the basis of res judicata without leave to amend.
Wager filed a motion for reconsideration. The trial court determined it lacked jurisdiction to decide the motion in light of the judgment having been entered. The court determined even if reconsideration was granted, it would reach the same result sustaining Assembly Team’s demurrer to the SAC without leave to amend.
DISCUSSION
Wager contends the judgment should be reversed. We disagree.
An appellant acting in propria persona has the same burden to affirmatively demonstrate reversible error as one represented by counsel and is not entitled to special treatment. (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 524.)
We review an order sustaining a demurrer without leave to amend under well-established rules: “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).)
Wager’s opening brief fails to comply with numerous rules of court and appellate procedure. She routinely fails to support factual assertions with citations to the appellate record. (See Cal. Rules of Court, rule 8.204(a)(1)(C).) She regularly fails to support legal arguments with cogent analysis that applies legal authority to the facts of her case. (See Cal. Rules of Court, rule 8.204(a)(1)(B); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.)
Wager also has the burden of presenting an adequate record to affirmatively demonstrate trial court error. (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 494.) “We cannot presume error from an incomplete record.” (Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412.) Wager’s failure to include in the appellate record a copy of the reporter’s transcript regarding the demurrer hearing at issue hampers our ability to review the decision of the trial court. (See Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 711.) “[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
Even assuming Wager could overcome the procedural defects identified above, however, her argument does not pass muster. As we understand her argument, Wager claims res judicata did not bar claims omitted from the prior action against Assembly Team. Wager misunderstands the law. “[R]es judicata acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN Holdings).) A final judgment on the merits of an action precludes parties from re-litigating claims that were, or could have been, raised in the earlier action. (California Coastal Com. v. Superior Court (1989) 210 Cal.App.3d 1488, 1498.) The claim asserted by Wager in the prior action and the claims asserted in the SAC involved the same bicycle accident. Because Wager could have litigated her SAC claims in the prior action, they are barred by res judicata. (DKN Holdings, supra, 61 Cal.4th at p. 824.) Furthermore, Wager fails to demonstrate there is a reasonable possibility that the defects in the SAC can be cured by amendment. (Blank, supra, 39 Cal.3d at p. 318.) We find no error with the trial court’s judgment.





DISPOSITION
The judgment of dismissal is affirmed. Respondent is awarded its costs on appeal.


O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



GOETHALS, T.