Opinion
C082180
08-02-2018
J E CHARNEY, Plaintiff and Appellant, v. EDNA SALINAS, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 162884)
Plaintiff J E Charney (Charney) in propria persona appeals following a grant of summary judgment requested by defendant Edna Salinas (Salinas). After striking Charney's separate statement of undisputed material facts for nonconformance with Code of Civil Procedure section 437c, subdivision (b)(3), the trial court found Charney failed to present expert evidence contradicting the testimony of Salinas's expert that Salinas did not cause or contribute to Charney's injury. We understand Charney's argument on appeal to be that the trial court erred in refusing to consider her expert's preliminary report and that disputed issues of material fact precluded summary judgment.
No iteration of Charney's pleadings (complaints) is included in the appellate record. Thus, there is no way to assure that all of the evidence submitted in support of, or in opposition to, Salinas's motion for summary judgment addressed the claims and defenses raised in the pleadings. We affirm the judgment.
PROCEDURAL BACKGROUND
Charney sued Salinas, a medical doctor, and others in August 2014 for medical negligence. Thereafter, Charney filed a first amended complaint in October 2014 followed by a second amended complaint in February 2015. Salinas's summary judgment motion was heard and granted on January 22, 2016, and judgment entered on February 16, 2016. Charney filed a timely notice of appeal.
DISCUSSION
As a preliminary matter, we note Charney is representing herself in this appeal, but is nonetheless held to the same standards and rules of procedure as a licensed attorney. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Hence, Charney's failure to furnish an adequate record on appeal precludes our review of her arguments on the merits.
A judgment is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, it is an appellant's fundamental burden to overcome this presumption by affirmatively demonstrating error, which necessarily includes providing a record supporting such error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) Failure to provide an adequate record requires resolution of the appeal against the appellant. (Foust, supra, at p. 187.)
"On review of a summary judgment, we 'examine the record de novo and independently determine whether [the] decision is correct. [Citation.]' [Citation.] In undertaking our independent review of the evidence submitted, we apply ' "the same three-step process required of the trial court: First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party's showing has established facts which negate the opponent's claims and justify a judgment in movant's favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]" ' [Citation.]" (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 392.)
" 'The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues: the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.' [Citations.]" (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381, italics added.) Thus, the allegations of the complaint frame the material issues against which the evidence concerning the motion for summary judgment is judged. (Ibid.) For example, this rule prohibits an appellant from using a theory not pled in the complaint to escape summary judgment on appeal. (Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 1575-1576 [failure to plead reckless conduct precluded use of that theory to escape summary judgment on appeal].)
Here, Salinas partially corrected Charney's failure to include in the appellate record many documents (including the actual motion for summary judgment) required by California Rules of Court, rule 8.122(b)(3), but the record does not contain the pleadings from the trial court. Without the pleadings, we are unable to identify the material issues necessary to our analysis (FPI Development, Inc. v. Nakashima, supra, 231 Cal.App.3d at p. 381); thus, the record is inadequate for our review of the merits of Charney's contentions. (See Dawson v. Toledano, supra, 109 Cal.App.4th at p. 402 [failure to provide motion for summary adjudication and opposition papers, as well as complaint from another litigation necessary to the decision, precluded appellate relief]; Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 212-213 [forgiving failure to include one party's separate statement of facts where the content of that statement was included in another filing in the record].)
Under these circumstances, Charney's appeal necessarily fails. (Foust v. San Jose Construction Co., Inc., supra, 198 Cal.App.4th at p. 187.)
DISPOSITION
The judgment is affirmed. Salinas shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
BUTZ, Acting P. J. We concur: MURRAY, J. DUARTE, J.