Mitchell v.
Filed 2/21/13
Mitchell v. Hamilton CA2/1
PUBLISHED IN THE 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION ONE
CORNELL
MITCHELL,
Plaintiff and Appellant,
v.
BRIDGITTE
REGINA HAMILTON,
Defendant and Respondent.
B243002
(Los Angeles County
Super. Ct. No. BC468163)
Appeal from a judgment of the Superior Court of
County, Yvette M. Palazuelos, Judge. Affirmed.
Cornell Mitchell, in pro. per., for Plaintiff and
Appellant.
No appearance for Defendant and Respondent.
——————————
SUMMARY
Appellant Cornell Mitchell contends his
the trial court refused to grant his request to enter respondent Bridgitte
Hamilton’s default, and permitted Hamilton belatedly to file an answer to the complaint over
Mitchell’s objections. We affirm due to
Mitchell’s failure to provide an adequate record to permit appellate review.
BACKGROUND
Our recitation of the background is drawn from the
extremely thin clerk’s transcript in this matter and allegations in the opening
brief filed by Mitchell, who relies primarily on an uncertified docket summary
prepared by the trial court clerk in an effort to substantiate his factual
assertions on appeal.
Mitchell claims that in August 2011 Hamilton was served with the complaint in this action for
defamation. Mitchell allegedly served Hamilton with the complaint again in October 2011, after the
trial court ordered him to meet and confer with her regarding the issues in
this case. When they met, Mitchell
claims to have admonished Hamilton “regarding filing a responsive pleading in
this matter, pursuant to Code Of Civil Procedures [sic] 585 (b).†Hamilton took no action until March 23, 2012, about seven months after the complaint was filed,
when she filed an answer to the complaint.
On July 23, 2012, following a bench trial at which Mitchell and
Hamilton each appeared in pro. per., the trial court entered judgment in favor
of Hamilton. Mitchell
filed a timely notice of appeal from
the judgment.
DISCUSSION
Mitchell points to the docket sheet, which indicates he
filed requests for entry of Hamilton’s
default in October and again in December 2011.
Apparently, both efforts were rejected due to Mitchell’s failure to
satisfy procedural requirements for entry of default.
Mitchell contends on appeal that the clerk failed to
perform its ministerial duty to enter Hamilton’s default. He
also asserts that the trial court erred in continuing this matter several times,
all of which occurred over Mitchell’s alleged objections, given Hamilton’s
failure to timely file a responsive pleading.
Mitchell argues that these errors violated Code of Civil Procedure
section 585, subdivision (b), by allowing the matter to proceed notwithstanding
Hamilton’s failure to respond to the complaint within 30 days
of service. Taken together, Mitchell
claims the clerk’s and court’s errors violated his State and Federal
Constitutional due process and equal protection rights.
The record is insufficient to permit us to conduct an
adequate review of Mitchell’s contentions or the trial court’s rulings—we
simply cannot ascertain what the court’s determinations (prior to the judgment
were), or the legal bases for those rulings.
“Error is never presumed on
appeal. To the contrary, appealed
judgments and order are presumed correct
[citation]; and appellant has the burden of overcoming this presumption by
affirmatively showing error on an adequate
record.†(Eisenberg et al., Cal.
Practice Guide: Civil Appeals &
Writs (The Rutter Group 2012) ¶ 4:2, citing Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1140–1141.) An appellant’s preparation of a sufficient
record is pivotal to his or her potential to succeed on appeal.
The only items Mitchell designated for inclusion in the
appellate record were Hamilton’s answer to the complaint, the notice of entry of
judgment (if any) and judgment, and the notices of appeal and designating the
record on appeal. Mitchell checked a box
requesting that the record include certain exhibits admitted, refused or lodged
at trial, but failed to specify any exhibit.
Mitchell failed to designate the complaint, let alone any documents
reflecting his alleged multiple attempts to serve Hamilton and obtain her
default, or the clerk’s or the court’s rejection of those efforts. There is nothing in the record to support
Mitchell’s claim that he ever objected to continuance of the trial, nor does
any document shed light on the reasoning underlying the court’s decision to
continue the trial over Mitchell’s objections.
review is not possible without an adequate record explaining what
occurred. It is Mitchell’s burden to
demonstrate prejudicial error on an adequate record. He has not met that burden here.
In
Center (2000) 78 Cal.App.4th 498, the court found that appellant was unable
to carry his burden on appeal to demonstrate error in a trial court’s ruling
granting a motion to strike portions of a complaint when the only record on appeal
was appellant’s appendix (in lieu of a clerk’s transcript) containing the
notice of ruling. (Id. at p. 502.) Without a
copy of the motion to strike, any opposition thereto or the court’s order
granting the motion, the appellate court was unable to review the basis of the
trial court’s ruling. (
This appeal is similarly doomed by Mitchell’s provision of a selective
and inadequate clerk’s transcript. (See
425, 435 [inadequate record may be ground for default if appellant predicates
error on selective record, and fails to present portions of the proceedings
below which may provide grounds to affirm trial court’s decision].) Nor will the trial court’s exercise of discretion
be disturbed on appeal where, as here, an appellant fails to provide a record
sufficient to ascertain whether he has been prejudiced by a trial court’s
decision to continue the trial. (
111, 136.) Finally, an appellant cannot,
as Mitchell does here, assert defects in a document filed in the trial court
unless the record includes a copy of that document. (Cosenza
v. Kramer (1984) 152 Cal.App.3d 1100, 1102; Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1143.)
Further, Mitchell elected to proceed on appeal without a
reporter’s transcript for any hearing or for the trial. In checking the box electing to proceed
without reporters’ transcripts, Mitchell specifically acknowledged his
understanding that, “without a record of the oral proceedings in the superior
court, the Court of Appeal will not be able to consider what was said during
those proceedings in determining whether an error was made in the superior
court proceedings.†A party who chooses
not to include a record of pivotal oral proceedings in the appellate record
does so at great risk. (See
Cal.App.4th 1032, 1039 [“in the absence of a required reporter’s transcript and
other documents, we presume the judgment is correctâ€].)
The record Mitchell has provided is woefully inadequate
to enable us to determine whether the clerk erred by refusing to enter
Hamilton’s default, or whether the trial court abused its discretion by
continuing the matter and permitting Hamilton belatedly to file an answer. Mitchell cannot obtain reversal based on the
trial court’s allegedly erroneous discretionary orders in the absence of a
record explaining what occurred at the hearings or the court’s reasoning. (Wagner
v. Wagner (2008) 162 Cal.App.4th 249, 259; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440,
448.) Mitchell’s failure to meet his
burden to provide an adequate record demonstrating these alleged errors dooms
his appeal. Where “‘the record is
inadequate for meaningful review, the appellant defaults and the decision of
the trial court should be affirmed.’†(
Inc. (2002) 99 Cal.App.4th 1412, 1416.)
Mitchell has not sustained his burden on appeal to show error.
DISPOSITION
The judgment is affirmed.
JOHNSON,
J.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.
name="_ftn1" title="">[1] The civil case summary indicates an “Objection
Document (TO COURT’S CONTINUANCE IN THIS CASE)†was filed in April 2012. But that document was filed by “Defendant
& Defendant in Pro Per†(i.e., Hamilton).
Mitchell did file two unspecified “Objection Document[s] in February and
March 2012. Nothing indicates those
filings were directed at the court’s decision to continue the trial. Indeed, it is unlikely that the first
“Objection†took issue with that ruling, given that it was filed before
Mitchell and Hamilton met and conferred, and before Hamilton’s answer was filed
in March.
