Filed 11/20/19 Cooper v. Cal. Dept. of Corrections & Rehabilitation CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

SYDNEY COOPER,

Plaintiff and Appellant,

v.

THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al.,

Defendants and Respondents.

D073057

(Super. Ct. No. 37-2016-00037066- CU-WM-CTL)

APPEAL from an order of the Superior Court of San Diego County, Katherine A. Bacal, Judge. Affirmed.

Sydney Cooper, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Julie Malone and Gregory J. Marcot, Deputy Attorneys General, for Defendant and Respondents.

Sydney Cooper was an incarcerated inmate in Richard J. Donovan Correctional Facility in October 2016 when he filed a complaint and petition for writ of mandamus against the California Department of Corrections and Rehabilitation (CDCR) and several corrections officers. During the pendency of that civil suit, he filed an ex parte application for injunctive relief, which the court denied. Cooper challenges the court’s decision on appeal. We affirm.

BACKGROUND

Cooper filed a petition for a writ of administrative mandamus on October 21, 2016. (See Code of Civ. Proc., § 1094.5.) In it he alleged a correctional officer stole his radio and prison officials obstructed his attempts to file complaints about the theft and correctional officers’ subsequent retaliatory actions. Cooper amended the petition, and the CDCR demurred. Cooper opposed the demurrer.

While awaiting the hearing on the demurrer, which was scheduled for September 15, 2017, Cooper filed an ex parte application seeking injunctive relief. The ex parte application identified four issues of concern: (1) threats and intimidation against him; (2) retaliation against him for an unspecified reason; (3) interference with his ability to engage in judicial proceedings; and (4) ” ‘theft’ ” of personal property causing unspecified irreparable injury. It also sought protection to ” ‘enjoy a secured and protected right.’ ”

The application identified the relevant evidence as CDCR forms and declarations, neither of which was attached as exhibits to the application. It also explained that the declaration evidence would not be shared with the defendants so that the declarants would be protected from retaliation.

The court denied the requested relief at a hearing September 14. On September 15, the court sustained the CDCR’s demurrer and granted Cooper leave to amend the petition.

Cooper appealed the court’s denial of his ex parte request for injunctive relief and its granting of the demurrer in a single appeal. Following briefing, we dismissed the appeal of the court’s ruling regarding the demurrer for lack of jurisdiction. Remaining before us is Cooper’s appeal of the trial court’s denial of his ex parte request for injunctive relief. (See § 904.1, subd. (a)(6).)

DISCUSSION

A. Incomplete Appellate Record

We observe that Cooper is an in propria persona litigant. ” ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citation.] Thus, as is the case with attorneys, pro. per. litigations must follow correct rules of procedure. [Citations.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) Moreover, a fundamental rule of appellate review is that the trial court’s order is presumed to be correct. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) To overcome this presumption, the appellant bears the burden of providing an adequate record to affirmatively demonstrate error. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187; Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498 [incomplete record is construed against appellant].) Accordingly, the failure to provide an adequate record makes it impossible to overcome the presumption of correctness necessary for reversal of the court’s order.

The minute order that supplies the basis for this appeal is missing from the record on appeal. Cooper argues the order was excluded from the clerk’s transcript because the clerk intentionally omitted it, and the superior court judge was biased against him. However, Cooper designated the record on appeal, and he did not request the minute order from September 14, 2017.

Cooper attached a copy of the September 14 minute order to the opening brief as part of Exhibit B. However, attachments to a brief may include “exhibits or other materials in the appellate record” or copies of statutory materials not readily accessible. (Cal. R. Court, rule 8.204(d), emphasis added.) These attachments cannot exceed 10 pages. (Ibid.) Cooper attached two exhibits to his opening brief, neither containing materials in the appellate record. Moreover, these attachments exceeded the 10-page limit.

Without the court order denying the requested ex parte injunctive relief in the appellate record, we are not able to review the court’s actions or reasoning. Thus, we cannot determine whether the court abused its discretion. (See Butt v. State of California (1992) 4 Cal.4th 668, 678 (Butt).) Accordingly, Cooper is not able to overcome the presumption of correctness, and we affirm the trial court’s decision.

B. The Trial Court Did Not Abuse its Discretion

Even if we were to consider the contents of the September 14, 2017 minute order improperly attached to the opening brief as Exhibit B, we would affirm.

The minute order denies the request for injunctive relief, finding it “partially unintelligible and not allowable.” The court informed Cooper that the request appeared to mirror the relief he was seeking in the petition for writ of mandate, which was scheduled for a regular demurrer hearing the following day.

We review a trial court’s decision granting or denying the request for injunctive relief for abuse of discretion. (Butt, supra, 4 Cal.4th at p. 678.) The appellant bears the burden of showing the trial court’s decision ” ‘ “exceeded the bounds of reason or contravened the uncontradicted evidence.” ‘ ” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69 (IT Corp.).) We do not construct arguments to undermine a court’s order; when an appellant fails to support a point with reasoned argument, we treat that point as waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).)

Cooper’s primary argument appears to be that the court’s denial was an abuse of discretion because it was the product of judicial bias. However, aside from the court’s denials of his requests and the purported intentional omission of documents from the clerk’s transcript, which we addressed ante, Cooper does not identify evidence of such bias by the court. A trial court’s rulings against a party do not establish judicial bias. (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795-796.)

Moreover, Cooper does not separately argue or explain in what way the court’s denial of the ex parte request was wholly unreasonable or contravened uncontroverted evidence. (See IT Corp., supra, 35 Cal.3d at p. 69.) In his opening brief, Cooper contends the statement, “The Court informs petitioner that his request is partially unintelligible and not allowable and further that what he is requesting appears to be the same thing he is requesting in his petition for writ of mandate, which is the subject of the demurrer scheduled tomorrow,” is “a blatant lie,” but he does not explain why he believes this. Cooper cites section 128, subdivision (a), which identifies judicial powers. However, he does not explain how the court’s statement is inconsistent with the judicial powers cited in section 128 or in what way the statement is otherwise untruthful.

Thus, not only has Cooper failed to provide evidence of bias, but he has also failed to offer any cogent legal argument as to why the court’s denial of his ex parte request for injunctive relief abused discretion for some other reason. (See Benach, supra, 149 Cal.App.4th at p. 852.)

Because Cooper does not bring forth convincing arguments or point to evidence establishing that the court’s ruling was made in error, we would affirm.

DISPOSITION

The order is affirmed. Each party shall bear its own costs on appeal.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.