Opinion
B324883
09-19-2023
ISABELO EMMANUEL PASCUAL, Plaintiff and Appellant, v. ELLISON MARY LIBBY, Defendant and Respondent.
Isabelo Emmanuel Pascual, in pro. per., for Plaintiff and Appellant. Ellison Mary Libby, in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21STCV47205, Gail Killefer, Judge.
Isabelo Emmanuel Pascual, in pro. per., for Plaintiff and Appellant.
Ellison Mary Libby, in pro. per., for Defendant and Respondent.
We resolve this case by memorandum opinion because it "raise[s] no substantial issues of law or fact ...." (Cal. Stds. Jud. Admin., § 8.1.)
BENDIX, J.
A. Procedural Background
We summarize only those facts relevant to our disposition of this appeal.
On December 28, 2021, plaintiff and appellant Isabelo Emmanuel Pascual filed a complaint against defendant and respondent Ellison Mary Libby, alleging six causes of action: (1) violation of Civil Code section 1708.85; (2) violation of common law right of publicity; (3) defamation per se; (4) defamation per quod; (5) intentional interference with existing and prospective economic relations; and (6) negligent interference with existing and prospective economic relations. Libby moved to quash service of summons for lack of personal jurisdiction, or, in the alternative, to dismiss the action on the basis that California is an inconvenient forum.
On November 15, 2022, the trial court held a hearing at which it denied Libby's motion to quash service of summons but granted her motion to dismiss the action without prejudice on the ground of forum non conveniens. The trial court reasoned that although Libby had "not met her burden to quash service based on lack of specific jurisdiction, [Libby had] provided sufficient reasoning to show California is a disproportionately inconvenient forum for her." Among other things, the court observed that Libby had attested she" 'has been a resident of Florida for her entire life,'" and that Libby claimed to be "a full-time student in Florida." According to the court, Libby also argued that "there is 'no real evidence showing that these alleged incidents occurred in L.A. County ....'" The court further remarked, "[Libby] appearing remotely does not remedy the potential that, for example, certain third-party witnesses would be inconvenienced by this action continuing in California rather than Florida."
Pascual timely appealed the dismissal order.
Pascual's notice of appeal purports to seek review of a "[j]udgment after an order granting a summary judgment motion" entered on November 15, 2022. Because the trial court had instead ruled on a motion to dismiss on that date, we interpret Pascual's notice of appeal to apply to the trial court's order granting that motion and dismissing the action without prejudice. (See Cal. Rules of Court, rule 8.100(a)(2) ["The notice of appeal must be liberally construed."].)
B. Applicable Law
"In applying the traditional forum non conveniens analysis, the trial court must engage in a two-step process, on which the defendant bears the burden of proof. [Citation.] In the first step, the court must determine whether a suitable alternative forum exists. [Citation.] If the court finds that a suitable alternative forum exists, it must then balance the private interests of the litigants and the interests of the public in retaining the action in California." (Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 472 (Animal Film, LLC).) Whereas "[t]he existence of a suitable alternative forum is a legal question that we review independently," "[w]e review the trial court's balancing of the factors [at the second step] for abuse of discretion." (See id. at pp. 472-473.)
"' "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." [Citation.]' [Citation.] Thus, '" 'it is the appellant's responsibility to affirmatively demonstrate error'"' by '" 'supply[ing] the reviewing court with some cogent argument supported by legal analysis and citation to the record.'" [Citation.]' [Citations.] The appellant bears this burden of rebutting the presumption of correctness accorded to the trial court's decision, regardless of the applicable standard of review." (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (July 27, 2023, B316067) ___ Cal.App.5th ___, ___ [2023 WL 5341628, at p. *5].) Additionally, "[t]he rules of appellate procedure apply to [Pascual] even though he is representing himself on appeal." (See Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 595.) Although "[a] party may choose to act as his or her own attorney[, w]e treat such a party like any other party," meaning "he or she' "is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]"' [Citation.]" (See ibid.)
C. Discussion
Although Pascual's opening brief is somewhat convoluted, he seems to argue the trial court erred by: (1) concluding that dismissal on the ground of forum non conveniens was proper; (2) failing to "consider[ Pascual's] objection to the motion to dismiss"; (3) "not allowing oral argument" on Libby's motion; and (4) concluding that the court lacked personal jurisdiction over Libby.
Concerning the trial court's forum non conveniens ruling, Pascual does not challenge the court's implicit conclusion that Florida is a suitable alternative forum. Rather, Pascual appears to contest the court's conclusion at the second step of the analysis that "the private and public interests, on balance, [do not] favor retaining the action in California." (See Animal Film, LLC, supra, 193 Cal.App.4th at p. 473 [describing this as the second step of the forum non conveniens inquiry].) For instance, Pascual seems to argue that "between 2020 [and] 2022," Pascual and Libby "were in a physically romantic relationship," and Libby "resided physically and worked in the State of California ...."
(See Animal Film, LLC, supra, 193 Cal.App.4th at p. 472 [holding that the trial court determines "[t]he existence of a suitable alternative forum" at "the first step" of a forum non conveniens analysis].)
Pascual cannot overcome the presumption of correctness accorded to the trial court's ruling. In preparing the record on appeal, Pascual elected to proceed with only a partial clerk's transcript and no record of the oral proceedings before the trial court. That partial clerk's transcript consists of the case register, the trial court's orders dated November 15, 2022, two certificates of mailing, Pascual's notice of appeal, and Pascual's notice designating the record on appeal. Consequently, Pascual has failed to ensure that the appellate record contains the documents that the court considered in issuing its ruling, including Libby's motion.
In his notice designating the record on appeal, Pascual also checked a box indicating he "request[ed] that the clerk transmit to the Court of Appeal . . . the record of [an] . . . administrative proceeding that was admitted into evidence, refused, or lodged in the superior court." Pascual identified this supposed administrative proceeding as "Isabelo Pascual v. Ellison Mary Libby," and listed the date of the proceeding as November 15, 2022, which is the date of the hearing on Libby's motion to dismiss. Pascual does not claim that an administrative proceeding relevant to this case was also held on that date.
Pascual's" '[f]ailure to provide an adequate record on [the propriety of the trial court's balancing of private and public interest factors] requires that the issue be resolved against [him].' [Citation.]" (See Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 (Foust).) We acknowledge that Pascual attached to his opening brief a document that he claims is an objection he filed to Libby's motion to dismiss. Pascual's attaching this document to his opening brief does not remedy his failure to provide an adequate appellate record because (1) the record still does not contain any of Libby's trial court filings, and (2) the attachment is not part of the appellate record. (See Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 322, fn. 10 (Barriga) [noting that a "reviewing court may ignore [an] appendix to [a] brief containing material that is not part of the record on appeal"].)
Pascual also attached to his opening brief what appear to be photographs and screenshots of certain websites. It is unclear whether Pascual had previously filed or lodged these materials with the trial court. In any event, these documents are not properly before us because they do not appear in the partial clerk's transcript. (See Barriga, supra, 51 Cal.App.5th at p. 322, fn. 10.)
We also reject Pascual's claims that the trial court (a) did not consider his objection to Libby's motion and (b) refused to allow Pascual to present oral argument concerning the motion. In its ruling on Libby's motion, the trial court noted that "[Pascual had] submitted a courtesy copy to the court of his opposition, which he represented he had filed with the court, on the morning of the hearing"; the court did not state that it declined to consider this document. Additionally, the court indicated in its November 15, 2022 minute order that Libby's motion was "called for hearing and argued" during that proceeding. Pascual does not direct us to any portion of the partial clerk's transcript demonstrating that the trial court refused to consider his objection or permit him to argue at the hearing. As we noted above, Pascual elected not to provide a record of the oral proceedings before the trial court. Accordingly, Pascual has failed to substantiate these two claims of error.
(See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 279 [holding that the appellants forfeited certain claims of error by failing to "provide a single citation to the record" to support them]; Foust, supra, 198 Cal.App.4th at pp. 186-187 ["In numerous situations, appellate courts have refused to reach the merits of an appellant's claims because no reporter's transcript of a pertinent proceeding or a suitable substitute was provided. [Citations.] . . . [¶] . . ."' "[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed."' "].)
Lastly, Pascual's argument that the trial court had personal jurisdiction over Libby is irrelevant because the court found Libby had failed to meet her burden to demonstrate that it lacked jurisdiction.
DISPOSITION
We affirm the trial court's order of dismissal. Defendant and respondent Ellison Mary Libby is awarded her costs on appeal.
We concur: ROTHSCHILD, P. J. WEINGART, J.