Filed 6/1/20 Briggs v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

JOHNNY BRIGGS,

Plaintiff and Appellant,

v.

THE SUPERIOR COURT OF FRESNO COUNTY,

Defendant and Respondent.

F078719

(Super. Ct. No. 11CECG03656)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge.

Johnny Briggs, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

-ooOoo-

BACKGROUND

On October 24, 2018, defendant and respondent Fresno County Superior Court issued an order to show cause (OSC) regarding dismissal. It instructed plaintiff and appellant Johnny Briggs to appear at a December 7, 2018 hearing “to show cause why [he] should not be sanctioned for” “[d]elay in prosecution of case pursuant to any of the following …: [Code of Civil Procedure sections] 583.310, 583.210, … 583.150, 583.160, 583.410 and/or 583.420[, subdivision ](a)(2)([B]).” (Boldface omitted.) The OSC cautioned: “Failure to [a]ppear at this hearing might result in the dismissal of the action by the court.” (Boldface omitted.) That same day, a notice addressed to Briggs at Wasco State Prison was mailed.

According to a December 7, 2018 law and motion minute order, Briggs failed to appear at the hearing. The court dismissed the case. On January 7, 2019, Briggs appealed from the dismissal, asserting he advised the court clerk he had no longer been at Wasco State Prison at the time the notice was mailed and was not brought to court due to “a miscom[m]unication between CDCR[ ] and [the] transportation agency responsible for delivering [him] [to the] cause hearing.”

DISCUSSION

“ ‘A judgment or order of the lower court is presumed correct.…’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) The reviewing court “adopt[s] all intendments and inferences to affirm the judgment or order unless the record expressly contradicts them.” (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) “ ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) “It is the burden of the [appellant] to provide an adequate record to assess error.” (Nielsen v. Gibson, supra, at p. 324.) “Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502; see Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 [“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.”].)

Here, the record consists solely of the clerk’s transcript, which does not contain anything substantiating Briggs’s allegations. Therefore, Briggs fails to rebut the presumed correctness of the court’s ruling.

DISPOSITION

The order is affirmed. Costs are awarded to defendant and respondent Fresno County Superior Court.