Opinion
C084028
12-11-2017
JONATHAN ASSELIN-NORMAND, Plaintiff and Appellant, v. AMERICA'S BEST VALUE INN et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CVCV1601401)
In November 2016, appellant Jonathan Asselin-Normand, a 19-year-old proceeding pro se, filed a complaint against respondents America's Best Value Inn Marysville and Anil Patel, alleging five causes of action based on respondents' purported discriminatory practice of refusing to rent rooms to people under the age of 21. The complaint sought monetary, injunctive, and declaratory relief.
Shortly after commencing this action, appellant filed an ex parte application for temporary restraining order and order to show cause re: preliminary injunction, seeking to enjoin respondents from enforcing their minimum age requirement for renting rooms. Respondents filed an opposition, arguing, among other things, appellant's ex parte application should be denied because appellant failed to demonstrate any imminent danger or irreparable harm. Following a hearing on this matter, the trial court issued a minute order denying appellant's ex parte application, finding appellant had not presented any evidence showing an emergency or irreparable harm. The court also dismissed the action "in its entirety." Appellant filed a timely notice of appeal.
On appeal, appellant contends the trial court erred in dismissing the action sua sponte. He further contends the trial court erred in denying his request for issuance of an order to show cause why a preliminary injunction should not issue. We conclude we lack jurisdiction to consider appellant's challenge to the dismissal order. We further conclude appellant has not demonstrated the trial court erred in denying his request for issuance of an order to show cause. Accordingly, we affirm the trial court's order denying appellant's ex parte application.
DISCUSSION
A.
Judicial Notice
Pursuant to California Rules of Court, rule 8.252 and Evidence Code sections 452, 453, and 459, respondents request that we take judicial notice of court records showing appellant has filed other "virtually identical" civil actions. We deny the request for judicial notice filed July 18, 2017. "Reviewing courts generally do not take judicial notice of evidence not presented to the trial court." (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Only exceptional circumstances justify deviation from this rule. (Ibid.) Here, respondents concede the court records were not presented to the trial court. Further, they have not shown any exceptional circumstances that would justify our consideration of the records.
B.
Dismissal Order
Appellant contends the trial court erred in dismissing the action sua sponte. The record, however, does not contain a written order of dismissal signed by the trial court. Instead, the record contains an unsigned minute order that does not qualify as an appealable judgment of dismissal under Code of Civil Procedure section 581d. (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578-1579; Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 768.) Accordingly, because the minute order is not appealable, we lack jurisdiction to consider appellant's claim. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [reviewing court must raise jurisdictional issue on its own whenever a doubt exists as to whether appeal is taken from a final judgment or appealable order].) However, because an order denying a request for a temporary restraining order is immediately appealable, (Code Civ. Proc., § 904.1, subd. (a)(6); see In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1576), we will not dismiss the appeal.
C.
Ex Parte Application
Appellant contends the trial court erred in denying his ex parte request for issuance of an order to show cause why a preliminary injunction should not issue. In making this argument, appellant states he does not seek review of the trial court's denial of his request for issuance of a temporary restraining order, acknowledging the lack of a reporter's transcript of the hearing "may be an impending obstacle in seeking review." We discern no error.
In order to prevail on an ex parte application, "[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte." (Cal. Rules of Court, rule 3.1202(c).)
It is axiomatic in appellate review that the decision of the trial court is presumed correct. (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591.) It is the burden of the party challenging the decision to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) " '[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' [Citation.]" (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) In other words, "[w]here [appellant] fails to furnish an adequate record of the challenged proceedings, his [or her] claim on appeal must be resolved against him [or her]. [Citations.]" (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.)
Here, appellant has elected to proceed on a clerk's transcript, and the appellate record does not include a reporter's transcript. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082; Krueger v. Bank of America(1983) 145 Cal.App.3d 204, 207.) When an appeal is "on the judgment roll," we presume the evidence supports the trial court's ruling unless error "appears on the face of the record." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521-522.) Having reviewed the limited appellate record, we conclude appellant has not met his burden of establishing error. The record does not demonstrate appellant made an affirmative factual showing of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte. Accordingly, we will affirm the trial court's order.
DISPOSITION
The trial court's order denying appellant's ex parte application is affirmed. Respondents are awarded their costs incurred on appeal. (Cal. Rules of Court, rule 8.278(a).)
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
ROBIE, J.