Rodriguez v. Bakersfield Police Dept. CA5

Filed 8/16/23 Rodriguez v. Bakersfield Police Dept. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
ELIAS RODRIGUEZ,
F085304
Plaintiff and Appellant,
(Super. Ct. No. BCV-22-100396)
v.
BAKERSFIELD POLICE DEPARTMENT et. OPINION
al.,
Defendants and Respondents.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Bernard C.
Barmann, Jr., Judge.
Elias Rodriguez, pro. per., for Plaintiff and Appellant.
Marderosian & Cohen, Michael G. Marderosian and Heather S. Cohen for
Defendants and Respondents.
-ooOoo-
* Before Levy, Acting P. J., Poochigian, J. and Smith, J.
Appellant and plaintiff Elias Rodriguez (Rodriguez), acting in propria persona,
appeals from an order of the Kern County Superior Court dismissing his lawsuit against
respondents and defendants Bakersfield Police Department (police department) and the
City of Bakersfield (city) (collectively, defendants) in its entirety. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
I. Events Reflected in the Superior Court’s Register of Actions1
The superior court’s register of actions provides the following information:
On February 17, 2022, Rodriguez filed a complaint against police department and
city. On March 30, 2022, Rodriguez filed a first amended complaint.
On July 5, 2022, defendants filed a demurrer and motion to strike directed at
Rodriguez’s first amended complaint. On August 17, 2022, Rodriguez filed his
opposition to the demurrer and motion to strike.
On August 22, 2022, the superior court sustained defendants’ demurrer with leave
to amend and granted defendants’ motion to strike Rodriguez’s claim for punitive
damages and any damage claim prior to August 2, 2021. The court gave Rodriguez 20
days from the notice of entry of the court’s ruling to file an amended complaint. A notice
of entry of the order sustaining defendants’ demurrer was filed with the court on August
25, 2022.
Rodriguez never filed a second amended complaint.
On September 29, 2022, defendants filed a notice of motion to dismiss the entire
action with prejudice. Due to an error in the paperwork, the motion was refiled on
1 Because the record on appeal is sparse, our discussion of the procedural
background is largely derived from the register of actions included in the clerk’s
transcript.
2.
October 26, 2022. On November 16, 2022, Rodriguez filed his opposition to defendants’
motion to dismiss.
Notably, the record on appeal does not include Rodriguez’s original or
first amended complaint, any of the paperwork associated with the aforementioned
motions, or the superior court’s order sustaining defendants’ demurrer.
II. The Court’s Order on Defendants’ Motion to Dismiss
Defendants’ motion to dismiss was heard on November 23, 2022. Rodriguez
appeared at the hearing on his own behalf and defense counsel appeared on behalf of
defendants. The court ruled in favor of defendants and directed defense counsel to
prepare a proposed order.
On December 14, 2022, the superior court issued its “ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS ENTIRE ACTION, WITH PREJUDICE,
AND VACATING CASE MANAGEMENT CONFERENCE” (hereafter subject order).
It reads, in relevant part, as follows:
“The Motion to Dismiss, having been read and considered and on
proof made to the satisfaction of the Court, is hereby GRANTED. The
above-captioned matter is hereby dismissed in its entirety, with prejudice.”
III. Rodriguez’s Appeal
A. Rodriguez’s Notice of Appeal and This Court’s Motion to Dismiss the
Appeal
On November 28, 2022, Rodriguez filed a notice of appeal in connection with the
matter. On December 2, 2022, this court issued an order stating it was “considering, on
its own motion, dismissing the appeal on the ground that an appealable judgment or order
has not been filed in the superior court.” Ultimately, we learned the subject order had
been entered subsequent to the filing of the notice of appeal. As a result, we deemed
Rodriguez’s appeal to have been taken from the subject order. In our order, we directed
Rodriguez “to list December 14, 2022, as the ‘Date of Filing’ when completing item
3.
4.a.(3), ‘Judgment or order appealed from[]’ on Judicial Council form APP-003 (Rev.
Jan. 1, 2019), ‘Appellant’s Notice Designating Record on Appeal.’ ” We also informed
Rodriguez of the existence of the California Appellate Courts Self-Help Resource Center
and of its website address.2 The order read, in part:
“Online Resource Center for Self-Represented Litigants. The
California Appellate Courts Self-Help Resource Center is a Web site[] that
provides information about the civil appeal process, including a timeline of
the 12 steps of that process.[] The information is available in both English
and Spanish. As a self-represented litigant, appellant should use the
resource center for information on how to designate the record that will be
reviewed by this court (Step 3), preparing his opening brief (Step 5)—
which must comply with the requirements of California Rules of Court,[3]
rule 8.204—and completing the other steps of the appeal process.”
B. The Record on Appeal
On February 1, 2023, Rodriguez filed his “APPELLANT’S NOTICE
DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)” (hereinafter
sometimes designation of the record) in which he chose to proceed with a clerk’s
transcript under, rule 8.122, and a settled statement under, rule 8.137 in lieu of a
reporter’s transcript.4
On March 7, 2023, the superior court notified Rodriguez by mail that he had failed
to file a proposed settled statement and that “Failure to take action within 15 days from
the mailing of this notice may result in a dismissal of the appeal.” On March 29, 2023,
we received a clerk’s affidavit from the Clerk of the Superior Court of Kern County
stating, in relevant part: “Appellant having failed to file a Proposed Settled Statement,
2 I.e., https://selfhelp.appellate.courts.ca.gov/
3 All further references to rules are to the California Rules of Court.
4 “A settled statement is a summary of the superior court proceedings approved by
the superior court.” (Rule 8.137(a).)
4.
the record on appeal will consist only of the Clerk’s Transcript on appeal, as designated
per Appellant’s Designation of Record on Appeal, filed on 02/01/2023.”
As for documents to be included in the clerk’s transcript, Rodriguez’s designation
of the record only listed the notice of appeal, the designation of record, and the subject
order.
The form used to designate a record on appeal is Judicial Council form APP-003
(rev. Jan. 1, 2019), titled “Appellant’s Notice Designating Record on Appeal.” It advises
an appellant that, in addition to documents required for a record on appeal, he or she may
list additional documents to include in the record. It states: “If you want any documents
from the superior court proceeding in addition to the items listed in 4a. above [i.e.,
required documents] to be included in the clerk’s transcript, you must identify those
documents here.” Rodriguez did not list any additional documents to include in the
clerk’s transcript.
As a result, the record on appeal consists of only 26 pages and includes only the
following documents: (1) Rodriguez’s notice of appeal; (2) the register of actions; (3) the
subject order; (4) Rodriguez’s designation of the record; and (5) the certification of
record on appeal signed on behalf of the Clerk of the Superior Court of Kern County.
DISCUSSION
I. The Subject Order Is Appealable
“[A]n ‘order dismissing a complaint with prejudice constitutes an appealable
judgment….” (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 278,
citing Code Civ. Proc., §§ 581d, 904.1.) Consequently, the subject order is an appealable
order.
II. An Appellant Bears the Burden of Demonstrating Prejudicial Error
“ ‘When a plaintiff elects not to amend a complaint after a demurrer has been
sustained with leave to amend, if the complaint is objectionable on any ground raised by
the demurrer, the judgment of dismissal must be affirmed.’ ” (Schick v. Lerner (1987)
5.
193 Cal.App.3d 1321, 1327.) To succeed on appeal, therefore, Rodriguez must “show
that the complaint was not defective in any of the particulars specified in the demurrer.”
(Katenkamp v. Union Realty Co. (1935) 11 Cal.App.2d 63, 66.)
“[I]t is settled that: ‘A judgment or order of the lower court is presumed correct.
All intendments and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown. This is not only a general
principle of appellate practice but an ingredient of the constitutional doctrine of reversible
error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “[I]t is the appellant’s
[i.e., Rodriguez’s] burden to affirmatively demonstrate error.” (People v. Sanghera
(2006) 139 Cal.App.4th 1567, 1573.)
III. Rodriguez’s Arguments on Appeal and Defendants’ Response
Rodriguez’s opening brief, containing a total of 695 words, is as cryptic as it is
sparse. In his brief, Rodriguez states that laws sometimes change when they are
discovered to be unjust but sometimes “[o]ppressive practices remain” because of a
“failure to enforce the law” or “due to [a] wrong interpretation of the law.” Perhaps the
clearest expression of his claims on appeal are in the following excerpt from his brief:
“Issuing licenses or permits that enable criminal activity is a crime.
There is no statute meant to protect such an absurd practice. California
Government Code [sections] 818.2, and 821.2 are meant to protect the
government from incidental mishaps, not intentional … criminal offenses.
California Government Code [section] 818.4 does protect a government
unit from a bad employee’s intentional offense, but not when it’s in groups
and not when it’s continuously occurring.”
Rodriguez argues city “has issued business licenses that are not adhered to by the
businesses using them” and that police department is refusing to uphold the law.
Although the instant case is civil, he argues police department “has broken the following
laws: Criminal facilitation, Selective enforcement, Obstruction of Justice, Gender
Inequality, Aiding and Abetting, and Fraud” and that city “has issued a criminal license”
resulting in businesses “commit[ting] the following violations: Obscenity Violations,
6.
Disturbing the Peace, Public Health Violations, Lewd Conduct, Hate Crimes,
Aggravation of Gender Inequality” and many more.
Quoting the preamble to the United States Constitution, Rodriguez goes on to
argue city and police department “are not ensuring domestic tranquility, nor are they
promoting general welfare in this matter. … To interpret the California Government
Codes as a police department and a city to have absolute immunity for its crimes, no
matter if it’s intentional, no matter if it’s perpetual, no matter if it’s in groups, would be
violating the United States Constitution.”
In response, defendants argue Rodriguez’s “record and opening brief completely
fail to provide this Court with any meaningful information about what exactly this
Appeal is about.” They further argue Rodriguez’s opening brief “is essentially
incomprehensible, particularly to this Court that was not privy to the proceedings in the
Trial Court.” We agree with both of defendants’ statements.
From the parties’ appellate briefing, we are able to glean that Rodriguez’s
complaint was intended to challenge certain immunity statutes.5 However, Rodriguez’s
arguments are mere conclusions, completely divorced from any discussion of the facts, if
5 As previously noted, Rodriguez cites to the following code sections in his opening
brief: Government Code section 818.2 [“A public entity is not liable for an injury caused
by adopting or failing to adopt an enactment or by failing to enforce any law.”];
Government Code section 818.4 [“A public entity is not liable for an injury caused by the
issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny,
suspend or revoke, any permit, license, certificate, approval, order, or similar
authorization where the public entity or an employee of the public entity is authorized by
enactment to determine whether or not such authorization should be issued, denied,
suspended or revoked.”]; and Government Code section 821.2 [“A public employee is not
liable for an injury caused by his issuance, denial, suspension or revocation of, or by his
failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate,
approval, order, or similar authorization where he is authorized by enactment to
determine whether or not such authorization should be issued, denied, suspended or
revoked.”].
7.
any, alleged in his first amended complaint, and unsupported by cogent argument or
authority.
IV. Rodriguez Failed to Meet His Burden of Demonstrating Prejudicial Error
Section 430.10 of the Code of Civil Procedure allows a defendant to object to a
complaint by demurrer on any of the following eight specified grounds: (1) the court
lacks subject matter jurisdiction; (2) the plaintiff lacks legal capacity to sue; (3) the same
cause of action is pending in another action; (4) “[t]here is a defect or misjoinder of
parties”; (5) the complaint “does not state facts sufficient to constitute a cause of action”;
(6) the complaint is uncertain (e.g., ambiguous and unintelligible); (7) in contract actions,
where the complaint does not indicate “whether the contract is written, is oral, or is
implied by conduct”; and (8) “[n]o certificate was filed as required by [Code of Civil
Procedure] Section 411.35.” (Code Civ. Proc., § 430.10, subds. (a)–(h).)
Code of Civil Procedure section 430.30, subdivision (a) provides: “When any
ground for objection to a complaint … appears on the face thereof, or from any matter of
which the court is required to or may take judicial notice, the objection on that ground
may be taken by a demurrer to the pleading.”
“The standard of review on appeal from a judgment dismissing an action after the
sustaining of a demurrer without leave to amend is well established. ‘The function of a
demurrer is to test the sufficiency of the [pleading] as a matter of law, and it raises only a
question of law. [Citations.] On a question of law, we apply a de novo standard of
review on appeal.’ ” (First Aid Services of San Diego, Inc. v. California Employment
Development Dept. (2005) 133 Cal.App.4th 1470, 1476.)
Thus, in a typical case involving a general demurrer our task on appeal would be
to “perform an independent review of a ruling on a demurrer and decide de novo whether
the challenged pleading states facts sufficient to constitute a cause of action.” (Nguyen v.
Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1536.) Here, however, the record
on appeal does not include sufficient information for us to ascertain the grounds upon
8.
which defendants’ demurrer was brought or the basis of the superior court’s ruling to
sustain the demurrer. Nor does the record include a copy of the challenged pleading.
It was incumbent upon Rodriguez to provide this court with a sufficient record
upon which it could determine whether his first amended complaint was legally sufficient
to withstand demurrer. “It is the burden of the party challenging [a judgment or order] on
appeal to provide an adequate record to assess error.” (Maria P. v. Riles (1987) 43
Cal.3d 1281, 1295; Hernandez v. California Hospital Medical Center (2000) 78
Cal.App.4th 498, 502.) “Failure to provide an adequate record on an issue requires that
the issue be resolved against [the appellant].” (Hernandez, at p. 502.)
That Rodriguez is acting in propria persona does not excuse him from the burden
of providing an adequate record. As stated by the Supreme Court, sitting en banc, “we
make clear that mere self-representation is not a ground for exceptionally lenient
treatment…. A doctrine generally requiring or permitting exceptional treatment of
parties who represent themselves would lead to a quagmire in the trial courts, and would
be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975,
984–985.) Similarly, an appellant who is self-represented “must follow the rules of
appellate procedure. [Citations.] Those rules require an appellate brief to support each
point by argument and, if possible, by citation to authority and to provide a citation to the
record for a factual assertion. [Citation.] ‘[W]e may disregard factual contentions that
are not supported by citations to the record [citation] or are based on information that is
outside the record [citation]. We may disregard legal arguments that are not supported by
citations to legal authority [citation] or are conclusory [citation].’ [Citations.] Further,
we may treat a point that is not supported by cogent legal argument as forfeited.”
(County of Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861.)
9.
Here, the record on appeal is utterly deficient and precludes us from performing
the type of review necessary for cases of this nature.6 The record on appeal contains
none of the paperwork associated with defendants’ demurrer which, according to the
register of actions, would include defendants’ notice of hearing, memorandum of points
and authorities, request for judicial notice, and declaration of defense counsel in support
of the demurrer, as well as Rodriguez’s opposition to the demurrer. Nor does the record
on appeal include a copy of the court’s order sustaining defendants’ demurrer.
Most glaringly, the record on appeal does not include a copy of the first amended
complaint—the very document that was challenged by defendants’ demurrer, found to be
deficient in some manner by the trial court, and led to the issuance of the subject order.
As a result, we are unable to review the pleading to determine whether it was legally
sufficient to withstand demurrer.
Under these circumstances, we are bound to affirm the subject order.
DISPOSITION
The superior court’s “ORDER GRANTING DEFENDANTS’ MOTION TO
DISMISS ENTIRE ACTION, WITH PREJUDICE, AND VACATING CASE
MANAGEMENT CONFERENCE” is affirmed. Costs on appeal are awarded to
defendants.
6 We have reviewed Rodriguez’s designation of record and conclude that the record
on appeal contains all the documents Rodriguez designated for the clerk’s transcript.
10.