County of Colusa v. Crawshaw

Filed 7/10/08 County of Colusa v. Crawshaw CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Colusa)

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Craig M. Crawshaw brings this pro se judgment roll appeal from a family court order denying his motion to reconsider its order that he pay $146 per month in child support for his daughter.

Because he has failed to show the trial court erred, we shall affirm the judgment.

Background

The limited record on appeal establishes that Crawshaw and Alicia Torres Solis are the parents of one minor daughter. It appears their daughter lives with Solis. Beginning in March 2004, payment of child support was not ordered, and the issued was reserved.

In October 2006, the Colusa County Department of Child Support Services (the County) filed a motion seeking modification of the reserved child support order, and requiring Crawshaw to pay child support. Neither the Countys moving papers nor Crawshaws response appear in the record on appeal. A hearing was held on or about November 13, 2006. No reporters transcript of that hearing appears in the record; however, in support of his motion for reconsideration, Crawshaw described it, and averred that he had appeared and requested that the court consider two letters. One letter dated October 16, 2006, from Dr. Guerrero, [his] treating physician, indicated that due to [his] medical condition, [he] was currently unable to hold down a job. The other letter dated August 22, 2006, from California Department of Social Services related to [his] Social Security disability claim.

By order made in November 2006, the court directed Crawshaw to pay child support in the amount of $146 per month. A copy of the courts order is not in the record, and nothing in the record suggests Crawshaw appealed from it.

The following month, Crawshaw filed the instant motion for [r]econsideration pursuant to [Code of Civil Procedure] section 1008[, subdivision] (a) and modification of the support order. With his motion, he submitted what he contends are new and/or different facts in the form of three letters that were not considered by the court during the [support] hearing. The first, a January 2006 letter from Dr. Ethelwoldo P. Guerrero addressed To Whom It May Concern, states that (based on a January 24, 2006, examination) Crawshaw may continue to work with the following restrictions: Patient can sit for 30 minutes at a time but needs to move around after this. No lifting over 10 lbs. Patient is unable to work longer than 2 hours per day, 5 days a week[,] until 1/24/07.

The second was an August 2006 letter to Crawshaw from the California Department of Social Services, stating that the reconsideration of his claim for Social Security disability was in suspense until October 2006.

The third letter, an October 2006 letter from Dr. Guerrero addressed To Whom It May Concern, states that Crawshaw has chronic low back pain which is getting worse with time[,] his symptoms are progressing and he is unable to do lifting [or] pushing[,] he is unable to sit or stand or walk for [a] prolonged period of time and is currently unable to hold down a job due to his medical condition.

Solis opposed Crawshaws motion on the ground that there are no new or different facts for the court to consider. The issue of [Crawshaws] inability to work has been ongoing for the last few years. [He] has had ample opportunity to provide the court with a prognosis and/or a medical evaluation regarding his medical condition, including onset, treatment options, etc. [He] has not done so. Child support was reserved beginning March 10, 2004. Since then, [Crawshaw] has appeared before the court on numerous occasions and indicated that he cant work and that he has applied for Social Security disability, however, the evidence that he has presented to the court indicates that his Social Security disability claim was denied. . . . The letters [Crawshaw] has attached to his Notice of Motion are not new or different facts. They are not medical evaluations or a prognosis of his medical condition. These are letters that simply say he says his back hurts.

The County also opposed Crawshaws motion on the grounds that (1) he failed to make any showing of new or different facts, circumstances or law, as required by Code of Civil Procedure section 1008, subdivision (a) because all the evidence he now seeks to put forth before the court was put forward at the hearing before this court on November 13, 2006; (2) the letters attached to his motion are out of date and do not address the issue of part-time employment and are irrelevant; and (3) the originals of the two letters from Dr. Guerrero had not been filed with the court; thus, his submissions were hearsay.

Four days before the hearing on his motion, Crawshaw filed a new letter from Dr. Guerrero. The letter, dated January 3, 2007, reported the results of a recent examination he had performed on Crawshaw and concluded that Crawshaw suffers from degenerative disc problems. Dr. Guerrero also reported that Crawshaw had stopped taking his maintenance analgesic and opined that Crawshaw is permanently partially disabled and is stable.

Crawshaw, Solis, and the County all appeared at the January 8, 2007, hearing on Crawshaws motion, which was not reported. Following the hearing, the court denied Crawshaws motion.

Discussion

Crawshaw appeals from courts denial of his motion to reconsider or modify its support order. He has elected to proceed on a clerks transcript. (Cal. Rules of Court, rule 8.120.) No reporters transcript of the trial in this contested matter, or of any other hearing, appears in the record on appeal.

I. Applicable Standards of Review

On appeal, we must presume the trial courts judgment is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In service of that rule, we adopt all intendments and inferences to affirm the judgment or order unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Thus, an appellant must not present just an analysis of the facts and legal authority on each point made; he or she must support arguments with appropriate citations to the material facts in the record. If an appellant fails to do so, the argument is forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274 (County of Solano); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

Even though he is representing himself on appeal, Crawshaw is held to the same restrictive procedural rules as an attorney. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121.)

Because Crawshaw provides us with only a clerks transcript, we must treat this as an appeal on the judgment roll. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) Therefore, we must conclusively presume that the evidence is ample to sustain the [trial courts] findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error appears on the face of the record. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521 (National Secretarial Service); Cal. Rules of Court, rule 8.163.)

II. Appellant Has Failed to Show Reversible Error

Preliminarily, we note that California appellate courts are split on whether an order denying reconsideration is appealable. (Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1679.) This court adheres to the majority position that an order denying reconsideration is not appealable. (See, e.g., Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242 [this court]; In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 80-82 [Sixth Dist.]; Crotty v. Trader (1996) 50 Cal.App.4th 765, 769 [First Dist., Div. Two]; Hughey v. City of Hayward (1994) 24 Cal.App.4th 206, 210 [First Dist., Div. Five]; Rojes v. Riverside GeneralHospital (1988) 203 Cal.App.3d 1151, 1160 [Fourth Dist., Div. Two].)

But even were the order appealable, Crawshaws argument still fails because he has not demonstrated that the court abused its discretion in denying his motion for reconsideration.

Crawshaw complains on appeal that the County objected to the documents Crawshaw submitted in support of his motion as having not been timely filed, and that Commissioner Twede refused to read them and told Crawshaw he was just lazy and did not want to work. However, in his two-page handwritten brief on appeal, Crawshaw fails to provide a single citation to the record. For that reason alone, his argument is forfeited. (County of Solano, supra, 75 Cal.App.4th at p. 1274.)

Even if Crawshaws claim had not been not forfeited, we could not consider Crawshaws complaint that the trial court failed to consider his evidence. On a judgment roll appeal, our review is limited to error that appears on the face of the record. (See National Secretarial Service, supra, 210 Cal.App.3d at p. 521.) We presume official duties have been regularly performed (Evid. Code, 664), and this presumption applies to the actions of trial judges. (People v. Duran (2002) 97 Cal.App.4th 1448, 1461; Olivia v. Suglio (1956) 139 Cal.App.2d 7, 8 [If the invalidity does not appear on the face of the record, it will be presumed that what ought to have been done was not only done but rightly done].) Without a reporters transcript, we must presume the trial court properly found that the three 2006 letters did not constitute new or different facts, circumstances, or law, within the meaning of Code of Civil Procedure section 1008, subdivision (a), so as to warrant reconsideration of the support order. We also presume that the trial court properly found that the January 3, 2007, letter from Dr. Guerrero was not timely served before the hearing. (Code Civ. Proc., 1005, subd. (c).)

Disposition

The judgment is affirmed.

DAVIS, Acting P.J.

We concur:

NICHOLSON , J.

HULL , J.