Filed 4/15/20 Coleman v. Arnswald 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Lassen)

—-

SAAHDI ABDUL COLEMAN,

Plaintiff and Appellant,

v.

PATRICIA ARNSWALD,

Defendant and Respondent.

C082882

(Super. Ct. No. 59402)

This case involves an appeal fatally crippled by an insufficient appellate record. Plaintiff Saahdi Abdul Coleman appeals both from the judgment of dismissal after the defendant Patricia Arnswald’s demurrer to his complaint was entered without leave to amend, and from the trial court’s denial of his motion for reconsideration. He contends he was denied his constitutional right of access to the courts and to receive judicial review of his claims, and that the demurrer was improperly granted. We affirm because the record on appeal lacks the complaint and the demurrer, rendering appellate review of his claims impossible.

DISCUSSION

The record in this appeal begins with the Lassen County Superior Court’s May 10, 2016 order sustaining defendant’s demurrer to Coleman’s complaint. The order notes Coleman did not file an opposition to the demurrer and was not present at the hearing even though he was served and had adequate notice. The court found the complaint did not state sufficient facts to state adequate access to court, negligence, and retaliation claims. It further found judicially noticed documents submitted in support of the demurrer showed Coleman was not denied access to the court and Arnswald was not negligent. The court sustained the demurrer with prejudice without leave to amend and dismissed the case.

This is followed in the record by a May 27, 2016 notice of return from the superior court to Coleman, accompanied by the entry: “ALL PLEADINGS MUST COMPLY WITH RULES OF COURT 2.100-2.119. THE COURTS WILL NOT ASSEMBLE OR DISASSEMBLE ANY PLEADINGS.”

The next item in the record is a motion for reconsideration filed by Coleman on June 10, 2016. The motion asserts Coleman did in fact file a timely opposition that addressed every claim made in the demurrer. Appended to the motion were several exhibits including the notice of return, Coleman’s original opposition to the demurrer, proposed orders by the Attorney General in three other cases, Coleman v. California Department of Corrections (Super. Ct. Lassen County, 2014, No. 58181), Coleman v. California Department of Corrections (Super. Ct. Lassen County, 2014, No. 58527), and Coleman v. California Department of Corrections (Super. Ct. Lassen County, 2014, No. 57413).

The remainder of the record contains the notice of entry of judgment, two notices of appeal, the minute order denying reconsideration, exhibits in support of one of the notices (consisting primarily of the motion for reconsideration), appellant’s notice designating case record on appeal, and the full case history from the Lassen County Superior Court.

Coleman asserts the failure to consider his opposition to the demurrer and his motion for reconsideration deprived him of his due process right of access to the courts. He further contends his complaint states cognizable grounds for relief and pleaded sufficient facts to overcome the demurrer.

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, at p. 187.) These rules apply with equal force to pro per appellants such as Coleman. (See Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 595 [appellate rules apply to pro per litigants].)

We review an order sustaining a demurrer without leave to amend de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1469.) “For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law.” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) We may also consider documents attached to the complaint and matters subject to judicial notice. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) We also determine whether “there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.]” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

In the absence of the complaint, we cannot determine what claims it stated and what facts were alleged in support. Lacking the demurrer, we do not have a key fact utilized by the trial court, the judicially noticed exhibit attached to the demurrer. We accordingly reject Coleman’s claim that the court erred in granting the demurrer as the record prevents us from reviewing this claim.

The state of the appellate record likewise compels rejection of Coleman’s claim regarding access to the courts. As appellant, Coleman bears the burden of establishing prejudice resulting from any claimed error. (Vaughn v. Jonas (1948) 31 Cal.2d 586, 601; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.) We cannot determine whether the decision not to consider the opposition to demurrer prejudiced Coleman without having access to the complaint and the demurrer.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent. (Cal. Rules of Court, rule 8.278(a).)

/s/

Blease, J.

We concur:

/s/

Raye, P. J.

/s/

Hoch, J.