Filed 3/10/20 McCallum v. Batista 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MACK A. McCALLUM,

Plaintiff and Appellant,

v.

GILBERT BATISTA,

Defendant and Respondent.

F079622

(Super. Ct. No. 18CV-02271)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge.

Mack A. McCallum, in pro. per., for Plaintiff and Appellant.

Hampton Firm and Kyle A. Hampton for Defendant and Respondent.

-ooOoo-

Plaintiff Mack A. McCallum, representing himself, appeals from an order granting an unopposed motion for summary judgment. The defendant’s moving papers relied heavily on McCallum’s failure to respond to requests for admission and a subsequent order deeming the requests admitted. As with the motion for summary judgment, McCallum did not oppose defendant’s motion for requests for admission to be deemed admitted.

The deemed admissions are fatal to McCallum’s two causes of action. We have independently reviewed the defendant’s moving papers and the rest of the appellate record and conclude defendant has shown McCallum will not be able to establish an essential element of his causes of action alleging violations of Penal Code sections 290.4 and 290.46. McCallum’s specific contention that he did not oppose the summary judgment motion or appear at the hearing because he did not receive notice until after the hearing lacks evidentiary support and, therefore, the question of proper service is resolved by the rebuttable presumption in Code of Civil Procedure section 1013a for service by mail. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442 (Dill); see Evid. Code, § 641 [presumption that letter is received in ordinary course of mail].)

We therefore affirm the summary judgment.

FACTS & PROCEEDINGS

McCallum is a self-representing litigant who lives in a gated community in the County of Merced. McCallum has been a member of the board of directors of the homeowners’ association of the gated community for many years.

McCallum alleges that defendant Gilbert Batista misused information from the Megan’s Law website (MLW) in blatant disregard of Penal Code sections 290.4 and 290.46. McCallum alleges Batista misused the information in attempts to get residents to sign a petition to remove McCallum from the board of directors. At the board’s April 17, 2018 meeting, Batista announced to the board that McCallum was on the MLW and that Batista had a removal petition with 28 signatures. Batista then presented McCallum with a resignation document, which McCallum refused to sign.

In June 2018, McCallum filed a complaint against Batista, alleging two causes of action for violations of Penal Code sections 290.4 and 290.46. In July 2018, Batista’s attorney filed an answer containing a general denial and asserting the complaint (1) failed to state facts sufficient to constitute a cause of action and (2) was confusing, unintelligible and vague.

On the same day the attorney filed the answer, he also caused McCallum to be served with written discovery requests. Batista’s first two requests for admission asked McCallum to “ADMIT that BATISTA did not violate ANY section or subsection of Penal Code [section] 290.4” and to “ADMIT that BATISTA did not violate ANY section or subsection of Penal Code [section] 290.46.” The requests also asked McCallum to admit his insurance, loans, credit, employment, education, housing, and business relationships were not affected by any actions of Batista. The first nine special interrogatories asked McCallum how the alleged Penal Code violations had impacted his insurance, loans, credit, employment, education, housing, or benefits or privileges provided by any business. The final two special interrogatories asked, “In what way do YOU believe BATISTA violated Penal Code [section] 290.4” and section 290.46.

On August 6, 2018, Batista’s attorney received McCallum’s unverified, two-page response to special interrogatories, set one. McCallum stated the first nine interrogatories “had nothing to do with the complaint.” McCallum’s answer to the final two special interrogatories attempted to explain the statutory restrictions placed on the disclosure of information from the MLW and the related penalties. McCallum also stated he had a certificate of rehabilitation (a copy of the September 2005 certificate was attached) and asserted Batista’s claim that McCallum was a convicted felon was not accurate. McCallum did not respond to the form interrogatories or the requests for admission.

In September 2018, Batista filed motions relating to his written discovery. Batista sought an order (1) compelling interrogatory responses that complied with applicable statutes and (2) deeming his requests for admission admitted.

In October 2018, the trial court filed an order after hearing granting Batista’s unopposed motions. The order stated: “The truth of any matter specified in Defendant Gilbert Batista’s Request for Admission, Set One, therefore are deemed admitted.” The order also imposed monetary sanctions against McCallum.

In January 2019, Batista filed (1) a notice of motion and motion for summary judgment, (2) a memorandum of points and authorities in support of the motion, (3) a separate statement of undisputed material facts, and (4) an attorney’s declaration in support of the motion. Based on the deemed admissions, Batista argued there were no triable issues of material fact.

In April 2019, the trial court issued and adopted its tentative ruling to grant the summary judgment motion. No party requested argument or appeared at the hearing. The tentative ruling directed the prevailing party to prepare a written order for the court’s signature.

On May 9, 2019, McCallum served Batista with a document labeled “ENOUGH INFORMATION HAS ALREADY BEEN PRESENTED.” Under the heading “DISAGREEMENT WITH JUDGMENT,” McCallum stated: “I disagree with any summary judgment. I was not told the time or date of this hearing. I was not told of the hearing until a week after it was over.” McCallum also asserted the discovery was never completed because Batista never gave him a copy of the petition Batista used in his attempt to get McCallum removed from the board of directors, despite McCallum requesting it three times. McCallum stated he had witnesses who were at the board meeting and could testify to the use of the MLW information. McCallum also stated: “I had to underline and send the lawyer 290.4 and 290.46 pc, so he could see what the infraction was.”

On May 14, 2019, the trial court filed an order after hearing stating (1) Batista had met his initial burden of providing evidence that one or more elements of McCallum’s claim could not be met, (2) the burden shifted to McCallum to show the existence of a triable issue of material fact, and (3) McCallum, who did not oppose the motion for summary judgment, did not meet his burden. As a result, the court concluded judgment should be entered in favor of Batista and against McCallum.

On July 2, 2019, McCallum filed a document labeled “MOTION OF APPEAL or COULD BE Back on right track?” This court construed the document as a notice of appeal. On October 2, 2019, McCallum filed a document that this court treated as an attempt at an opening brief. In an order filed October 8, 2019, this court returned the document to McCallum for corrections, stating the deficiencies were “too numerous to list but include the lack of any table of contents or table of authorities, the failure to make any argument and to incorporate citations to authority in the arguments, and the failure to provide any citations to the record.” Our order also directed our clerk’s office to provide McCallum with a copy of California Rules of Court, rule 8.204 and referred him “to our self-help website which contains valuable information on how to prepare a brief. It can be found at https://selfhelp.appellate.courts.ca.gov/.”

In November 2019, McCallum filed his opening brief. In December 2019, Batista filed his respondent’s brief and a motion to augment the record. The motion sought to include in the record Batista’s discovery motions, his summary judgment papers, and the court’s orders on the motions. In January 2020, we granted the motion to augment and McCallum filed his reply brief.

DISCUSSION

I. BASIC PRINCIPLES

A. Overview: Access to Justice

1. Access to Court

The United States Supreme Court has “grounded the right of access to courts in the Article IV Privileges and Immunities Clause [citations], the First Amendment Petition Clause [citations], the Fifth Amendment Due Process Clause [citations], and the Fourteenth Amendment Equal Protection [citation] and Due Process Clauses [citations].” (Christopher v. Harbury (2002) 536 U.S. 403, 415, fn. 12.) A California appellate court stated access to court is “a right guaranteed to all persons by the federal and state Constitutions.” (Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814, 821.) It arises from the right to “petition the government for redress of grievances” contained in article I, section 3, subdivision (a) of the California Constitution and also is protected by the First Amendment. (Jersey, supra, at p. 821.)

“Access to justice is a fundamental and essential right in a democratic society. It is the responsibility of government to ensure that all people enjoy this right.” Providing access to justice through the civil court system is a multidimensional problem, as is illustrated by the symposia sponsored by the Civil Justice Program at Loyola Law School Los Angeles. The Legislature has addressed one aspect of the access problem by adopting provisions relating to court fees and the waiver of those fees for indigent parties. (See Gov. Code, §§ 68630-68641 [waiver of court fees and costs].) Our Supreme Court recently addressed issues relating to providing court reporters for a proceeding involving an indigent litigant. (Jameson v. Desta (2018) 5 Cal.5th 594, 623 (Jameson) [trial court erred in failing to make an official court reporter available to in forma pauperis plaintiff upon request].) Another set of issues about access to the court is raised by litigants who represent themselves.

2. Self-Represented Litigants

The California Rules of Court address how the judicial system interacts with in propria persona (i.e., self-representing) litigants. “Providing access to justice for self-represented litigants is a priority for California courts.” (Rule 10.960(b) [effective Jan. 1, 2008].) The difficulties faced by self-represented litigants in obtaining meaningful access to the courts can be addressed in a variety of ways. (See Buhai, Access to Justice for Unrepresented Litigants: A Comparative Perspective (2009) 42 Loy. L.A. L.Rev. 979, 985-993.) For instance, self-represented litigants could be allowed to proceed under relaxed rules of procedure and evidence. This approach, for the most part, has not been taken in California. (Id. at p. 993; see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 (Rappleyea) [difficulties of providing special treatment to parties who represent themselves].) Thus, as a general rule of California law, “in propria persona litigants, like appellant, are entitled to the same, but no greater, rights than represented litigants.” (Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1487 (Apollo); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 (Nwosu); Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)

This is a general rather than absolute rule because it is subject to exceptions. For example, it “ ‘must yield to the even greater principles of providing in propria persona litigants with meaningful access to the courts and of deciding bona fide civil actions on their merits.’ ” (Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 469, quoting Apollo, supra, 167 Cal.App.4th at p. 1487.) Also, judges have “ ‘the discretion to take reasonable steps, appropriate to the circumstances and consistent with the law and the canons, to enable a [self-represented] litigant to be heard.’ ” (Rothman, et al., California Judicial Conduct Handbook (4th ed. 2017) § 2:28, pp. 96-97, quoting Cal. Code Jud. Ethics, canon 3B(8), commentary.) The handbook describes ethically permissible conduct related to self-represented litigants, including some areas of permissible accommodation. (Id. at pp. 99-100.)

California’s primary means of addressing the problems faced by self-representing litigants is to provide services that prepare individuals to better represent themselves. Specifically, self-representing litigants may receive assistance from brick-and-mortar and online self-help centers. In accordance with this statewide policy, the Merced County Superior Court maintains a web page describing its self-help center. Physical offices of the center are located on the first floors of the Merced Courthouse and the Los Banos Courthouse. In addition, the court’s web page contains a link to online resources.

The stated purpose of the self-help centers is to improve the delivery of justice to the public by facilitating the timely and cost-effective processing of cases involving self-represented litigants. (Rule 10.960(b).) “The information and education provided by court self-help centers must be neutral and unbiased, and services must be available to all sides of a case.” (Rule 10.960(d).) An Online Self-Help Center is available to the public at www.courts.ca.gov/selfhelp.htm. (See Rule 1.6(22) [definition of “California Courts Web Site”].) A web page titled “Discovery” states formal discovery is a legal process that can be used after a case has been filed to get information from the other side and lists the formal discovery tools as interrogatories, depositions, requests for production of documents, requests for admissions, and subpoenas. The web page also states:

“Discovery is very complicated and often requires knowledge of evidence rules and other legal strategies. It is often necessary to have a lawyer help you with discovery. If you are representing yourself in your case, discovery may be a good part of your case to let a limited-scope lawyer handle on your behalf.” (Ibid.)

To assist users in understanding specific legal terms, the Online Self-Help Center includes a glossary that defines “discovery,” “interrogatories,” “request for admission,” “summary judgment,” and many other terms.

Another online self-help center is devoted to civil appeals. The California Appellate Courts Self-Help Resource Center provides an appeals timeline that breaks the appeals process into 12 steps and provides information to assist litigants in navigating each step. Our October 8, 2019, order informed McCallum of the existence of this online self-help center.

3. McCallum’s Arguments

In this case, McCallum has not explicitly argued he is entitled to more lenient treatment because he represented himself and is not a lawyer. However, the document labeled “Complaint of Mack McCallum [¶] Fifth Appellate District [¶] Answer to Defendants brief” and filed with this court in January 2020 asserts: “We need witnesses in this case who can testify as to what they heard on April 17th 2017 during the executive session that [Batista] called.” The final paragraph of that document states: “Defendant’s lawyers has put together a 169 page synopsis which is inaccurate and leaves me wondering what else in the 169 pages was copied inaccurately. We really need the witness’s to get justice in this case.”

These arguments could be viewed as implying that McCallum believes the procedural rules governing discovery, motions to compel, motions for summary judgment, and how an appellant establishes reversible error should not be applied in this case and, instead, this court should “get justice in this case” by reversing the judgment and remanding for a trial at which witnesses are presented.

Based on the California Supreme Court’s discussion in Rappleyea, supra, 8 Cal.4th at page 985 and Rule 10.960, we conclude that McCallum, despite his status as a self-representing litigant, is subject to the provisions of the Code of Civil Procedure governing the discovery process, motions for requests for admission to be deemed admitted, and motions for summary judgment. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284–1285 (Gamet) [self-representing litigants must follow the same statutes and court rules governing procedure as represented parties; however, courts should exercise care when dealing with self-representing litigants to make sure oral instructions and written notices are clear and understandable].)

Similarly, at the appellate level, McCallum is subject to the basic principles of appellate procedure and to Rule 8.204, which governs the contents and form of appellate briefs. (Nwosu, supra, 122 Cal.App.4th at pp. 1246–1247 [on appeal, self-representing appellant must follow correct rules of procedure].) Self-representing litigants like McCallum are assisted in complying with these requirements by the web pages and videos available through the California Appellate Courts Self-Help Resource Center, and an outline of an opening brief is provided.

B. Appellant’s Burden to Establish Prejudicial Error

In Jameson, supra, 5 Cal.5th 594, the California Supreme Court set forth some of the basic principles of appellate procedure by stating “it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.] ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court.…’ [Citation.] ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant [has failed to carry its burden] and the decision of the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ ” (Id. at pp. 608–609.)

C. Standard of Review

Under the long-established principles for appellate review of orders granting summary judgment, we conduct a de novo review, considering all the evidence set forth in the moving and opposition papers except evidence for which objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) “De novo is a Latin phrase meaning ‘from the beginning.’ In de novo review, the appellate court does not defer to the decisions made in the trial court and looks at the issue as if the trial court had never ruled on it. This type of review is generally limited to issues involving questions of law.” Accordingly, when reviewing the grant of a summary judgment, we apply the same three-step analysis used by the trial court and reach our own determinations. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.)

Under section 437c, subdivision (c), a motion for summary judgment must be granted if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Thus, we first identify the issues framed by the pleadings. Our second step is to decide whether the defendant has met his burden of showing that the causes of action have no merit by showing that one or more elements of the cause of action cannot be established or there is a complete defense to the cause of action. (§ 437c, subds. (o), (p)(2); Guz, supra, at p. 334.) If the moving defendant has met its burden, we proceed to the third step of the analysis and determine whether the plaintiff has presented evidence showing a triable issue of one or more material facts exists as to the cause of action. (§ 437c, subd. (p)(2).) Even when a motion is unopposed, the moving party must meet its initial burden before the trial court may grant summary judgment. (Harman v. Mono General Hospital (1982) 131 Cal.App.3d 607, 613 [judgment reversed because motion should have been denied].)

II. SUMMARY JUDGMENT ANALYSIS

A. Absence of a Separate Statement

The summary judgment statute provides that a party opposing a summary judgment must “include a separate statement that responds to each of the material facts contended by the moving party to be undisputed” and the “[f]ailure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (§ 437c, subd. (b)(3).) This provision has been interpreted to mean that the failure to submit a separate statement does not relieve the moving party of its initial burden. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416.)

In this case, McCallum did not file a separate statement. Under the foregoing rules, that fact, standing alone, does not provide a sufficient ground for affirming the grant of summary judgment. Consequently, we must undertake the second step of the summary judgment analysis and independently determine whether Batista’s moving papers carried his initial burden.

B. Existence of a Constitutional Violation

As the moving party, Batista “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Here, Batista has attempted to carry his burden of persuasion by showing an element of the causes of action cannot be proven—specifically, the violations of the Penal Code alleged in each of McCallum’s causes of action.

Batista relied on the order stating the truth of any matter specified in Batista’s requests for admission, set one, was deemed admitted. (See § 2033.280, subd. (b) [order that truth of matters specified in requests are deemed admitted].) Because Batista requested McCallum to admit that Batista did not violate any section or subsection of Penal Code sections 290.4 and 290.46, the order establishes (at least for purposes of this litigation) that Batista did not violate those statutes. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775 [matters deemed admitted through request for admission discovery devices are conclusively established in the litigation and are not subject to being contested through contradictory evidence]; see § 2033.410, subd. (b).) Consequently, the deemed admissions were sufficient to carry Batista’s initial burden of demonstrating an element of the causes of action—specifically, the statutory violation alleged—could not be established. (§ 437c, subds. (o)(1), (p)(2).) Accordingly, the trial court properly granted Batista’s motion for summary judgment, unless one of the procedural points raised by McCallum establishes a reversible error.

III. McCALLUM’S CLAIMS OF REVERSIBLE ERROR

The document we have interpreted as McCallum’s appellant’s opening brief appears to set forth four things that McCallum contends went wrong during the trial court proceedings. We consider the asserted errors in chronological order.

A. Motion to Compel Answers to Interrogatories

McCallum’s assertion of trial court error is set forth verbatim to assure we do not change its nature by paraphrasing it:

“The judge ruled in favor of defendant’s lawyer for a Motion to Compel, when the interrogatories had nothing to do with the case and had already been answered. The ruling was granted 7 months after the lawyer told the court he didn’t receive enough information. This is long after the 6 week time limit.”

First, we note this assertion, like the entire opening brief, lacks a single citation to the appellate record. Pursuant to Rule 8.204(a)(1)(C), an appellate brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” In Nwosu, supra, 122 Cal.App.4th 1229, the court quoted an earlier version of this provision and set forth the principle that “ ‘[i]f a party fails to support an argument with the necessary citations to the record, … the argument [will be] deemed to have been waived. [Citation.]’ ” (Id. at p. 1246.) Under this principle, McCallum’s challenge is deemed waived.

Second, the augmented record Batista provided includes an order after hearing filed on October 10, 2018, ruling on various motions to compel. The order states the unopposed motion to compel McCallum to respond to special interrogatories, set one, is granted. The absence of an opposition to the motion to compel demonstrates McCallum did not raise his arguments about timing when the trial court was considering the motion to compel. This failure to raise the argument results in a forfeiture of the argument. (See Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1381 [failure to raise issue in trial court is deemed a waiver of the point on appeal].)

Third, under California’s constitutional doctrine of reversible error, an appellant must affirmatively demonstrate “the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) The “miscarriage of justice” standard is satisfied when there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. (Harb v. City of Bakersfield (2015) 233 Cal.App.4th 606, 617; see In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1051 [doctrine of reversible error requires appellant to establish prejudice].) Here, McCallum has not demonstrated the claimed error relating to the interrogatories and corresponding motion to compel had any effect on the outcome of the motion for summary judgment, which was based on the deemed admissions. Therefore, we conclude McCallum has not shown the ruling on the motion to compel interrogatory responses or the timing of that ruling caused any prejudice to his case.

Based on the foregoing three grounds, we conclude McCallum has not demonstrated reversible error.

B. Proof of Service

McCallum contends defense counsel “would use his legal aid to sign his proof of service and also to write responses to the court. This is not legal.” This contention lacks merit because it is based on an incorrect view of California law.

Section 1013a addresses the preparation of a proof of service by mail. Nothing in this section requires the attorney who prepared the document to complete the related proof of service. Rather, the statute refers to an affidavit “showing the name and residence or business address of the person making the service .…” (§ 1013a(1), italics added.) “[T]he person making the service” by mail must satisfy the criteria set forth in the statute—specifically, the person must be “a resident of or employed in the county where the mailing occurs,” must be “over the age of 18 years,” and must not be “a party to the cause.” (§ 1013a(1).) These criteria can be (and customarily are) met by someone other than the attorney who prepared the document being served.

A widely used practice guide states: “Frequently, the secretary or other person doing the mailing declaration does not actually put the mail in the U.S. mailbox, but gives it to someone in the office for this purpose. In such cases, the declarant must state” additional information prescribed in subdivision (3) of section 1013a about the business’s practices for the collection of mail. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 9:86.3, p. 9(I)-55.) Thus, the statute and practice guide demonstrate a legal assistant or other law firm employees are authorized to sign a proof of service attached to a document prepared by counsel. Accordingly, we reject McCallum’s claim that the proofs of service were “not legal.”

C. McCallum’s Discovery

McCallum contends that during discovery he asked for the names of the persons who signed the petition Batista presented to the board on April 17, 2018. McCallum asserts he “asked for them 4 times and it was never ruled on. Finally, I sent a Motion to Compel and the court said the case was over.” As with his other arguments, McCallum provides no citations to the record to support his assertions of fact and his designation of the record on appeal does not include his four requests for information, his motion to compel, or any response by the court to that motion. (See Jameson, supra, 5 Cal.5th at pp. 608–609 [if the record designated by appellant is inadequate for meaningful review, appellant cannot carry his burden of demonstrating error and the decision of the trial court should be affirmed].) As a result of these omissions, McCallum is deemed to have waived this argument relating to his discovery.

Moreover, McCallum does not explain how the trial court’s handling of his discovery requests resulted in Batista’s motion for summary judgment being erroneously granted. In particular, he has not shown the treatment of his discovery had any impact on the deemed admissions. These deemed admissions were the foundation for Batista’s motion for summary judgment. Thus, even if there were an error relating to McCallum’s discovery requests, he has not shown there is a reasonable probability that in the absence of the error, a result more favorable to him would have been reached. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Thus, McCallum has not demonstrated any error in the handling of his discovery requests was prejudicial. (See Cal. Const., art. VI, § 13.)

D. Lack of Notice

McCallum’s opening brief includes the following argument as to why his appeal should be granted: “Defendant’s lawyer had the jurisdiction changed without my approval and set up a summary judgment without my knowledge. I was told about this judgement 7 days after it was ruled on, when the judge gave only 5 days to respond.” McCallum provides no citations to the record to support the factual assertions in this argument. Also, the record he designated for appeal did not include any documents demonstrating the lack of notice.

There are, however, documents in the appellate record supporting the inference that McCallum did not receive notice of the motion for summary judgment. For instance, the trial court’s one-page minute order stated the “unopposed motion for summary judgment by defendant is GRANTED.” The absence of an opposition provides a small amount of support for the inference that McCallum did not receive notice. In addition, the respondent’s augmented record included a document labeled “ENOUGH INFORMATION HAS ALREADY BEEN PRESENTED” in which McCallum disagreed with the granting of Batista’s motion for summary judgment. The document was signed by McCallum, dated May 9, 2019, and stated: “I disagree with any summary judgment. I was not told the time or date of this hearing. I was not told of this hearing until a week after it was over.”

In comparison, the record also contains documents showing McCallum was notified of the motion. The proof of service attached to the notice of motion and motion for summary judgment states it was served by placing a copy in an envelope addressed to McCallum at the address listed on the face of his complaint and placing the envelope, postage fully prepaid, in the area designated for outgoing mail in accordance with the declarant’s office’s practices. The declaration in the proof of service is “sufficient to raise a rebuttable presumption that the notice has been received in the ordinary course of mail.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 9:86.3a, p. 9(I)-55; see Evid. Code, § 641 [letter received in ordinary course of mail].) Similar proofs of service are included with the memorandum of points and authorities in support of the motion for summary judgment, the separate statement of undisputed material facts, and a supporting declaration. “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper.” (Dill, supra, 24 Cal.App.4th at pp. 1441-1442.) The rebuttable presumption can be overcome by detailed and credible declarations that notice was not actually received. (See Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1481 (Bonzer).)

Here, the record does not show McCallum challenged the proofs of service prior to the grant of the motion for summary judgment. Thus, when the trial court granted the motion, it properly relied on the proofs of service. In addition, after learning the motion for summary judgment had been granted, McCallum did not raise the issue of the failure to receive the mailed documents in a procedurally appropriate way with the trial court. For instance, unlike the appellant in Bonzer, McCallum did not file a motion to set aside the judgment pursuant to section 473 and support that motion with a detailed declaration showing notice was not actually received. (Bonzer, supra, 20 Cal.App.4th at pp. 1479-1481 [six detailed, credible and unimpeached declarations of no actual notice precluded trial court from inferring the subject notices had been received; denial of motion for relief from judgment reversed].) Consequently, we conclude McCallum’s claim that he did not receive notice of the summary judgment motion lacks evidentiary support and fails to demonstrate reversible error.

DISPOSITION

The judgment is affirmed. Batista shall recover his costs on appeal.

Parties and Attorneys
McCallum v. Batista
Case Number F079622
Party Attorney

Mack A. McCallum : Plaintiff and Appellant
2986 La Vina Circle
Los Banos, CA 93635 Pro Per

Gilbert Batista : Defendant and Respondent
Kyle Alexander Hampton
HAMPTON FIRM
530 W. 21st Street, Suite A
Merced, CA 95340