CEDRIC GREENE v. BROOKS (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

factual and procedural background

Greene filed this action against D. Brooks, a parole agent employed by the California Department of Corrections and Rehabilitation.   Greene alleged that he and Brooks entered into a written agreement regarding the scheduling of Greene's parole hearings, and Brooks failed to comply with the agreement.   Greene filed four additional, related cases, which the trial court consolidated with the present case.¹

The matter was called for a final pretrial conference on June 17, 2009.²  Apparently Greene did not appear at the pretrial conference or when the matter was called for trial, refusing to proceed before the trial judge hearing the matter.³  The case was dismissed on or about June 25, 2009;  however, the record on appeal does not contain the order of dismissal or a reporter's transcript of the proceedings.   The order of dismissal contained in the record pertains to one of the related cases.

Greene filed a notice of appeal from the order of dismissal on June 26, 2009.

discussion

On appeal, Greene contends that the trial court committed error by conducting proceedings during a time when Greene could not be in attendance and was not receiving notice.   We find no error.

A trial court may dismiss the complaint, without prejudice, “when either party fails to appear on the trial and the other party appears and asks for dismissal.”  (Code Civ. Proc., § 581, subd. (b)(5);  see 6 Witkin, Cal. Procedure (5th ed.   2008) Proceedings Without Trial, § 475, at p. 932.)   That is apparently what occurred here.

The record before us does not contain any evidence showing that Greene notified the trial court of his inability to appear before it.   Indeed, there is no explanation in the record of the basis for his purported inability to appear.   Greene merely states that he was “unable to comply with any court order due to an adverse situation that was considered priority for him during that time.”   Greene requests that we review “previous files to see that he had appropriate cause to refrain from being in attendance during the time that the trial court was moving forward in his absence.”   However, this court is not required to scrutinize “previous files” in search of supposed error.⁴  The applicable standard of review requires that appellant provide an adequate record that affirmatively demonstrates error.   The record now before us contains no evidence regarding the reason for his failure to attend the trial, or any support for the assertion that he notified the trial court of his inability to appear.

Any meaningful review of this matter has been made virtually impossible by the inadequate record of the trial court proceedings.   Because Greene has failed to meet his burden of providing an adequate record on appeal, barring our independent review of this matter, the trial court's ruling must be affirmed.   “A fundamental rule of appellate review is 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.” ’  [Citations.]”  (Conservatorship of Rand (1996) 49 Cal.App.4th 835, 841.)   To overcome this presumption, appellants must provide an adequate record that demonstrates error.  (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)

Finally, we note that Greene directs our attention to California Rules of Court, rule 3.650, regarding filing and service of notice of stay orders, “to determine if the appellant's circumstance was proper to be granted relief within the meaning of its language.”   A stay was never granted in this matter.   Greene filed two petitions for writ of mandate in which he urged us to stay the matter, but we denied those requests.   We will not revisit yet again on this appeal the denial of a stay.

disposition

The order of dismissal is affirmed.   Respondent is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Greene v. California State Prison - Los Angeles County (Los Angeles Superior Court Case No. BC386247) is currently pending before this court (Case No. B217174).  Greene v. Soisuvarn and Greene v. Cermak (Los Angeles Superior Court Case Nos. BC393073 and BC384752, respectively) are pending before Division One of this court (B217176 and B217536, respectively).   The order of dismissal in Greene v. Levis (Los Angeles Superior Court Case No. BC386903) was affirmed on appeal, in a nonpublished opinion filed on October 28, 2009 (B214175)..  FN1. Greene v. California State Prison - Los Angeles County (Los Angeles Superior Court Case No. BC386247) is currently pending before this court (Case No. B217174).  Greene v. Soisuvarn and Greene v. Cermak (Los Angeles Superior Court Case Nos. BC393073 and BC384752, respectively) are pending before Division One of this court (B217176 and B217536, respectively).   The order of dismissal in Greene v. Levis (Los Angeles Superior Court Case No. BC386903) was affirmed on appeal, in a nonpublished opinion filed on October 28, 2009 (B214175).

FN2. Much of the information regarding the proceedings below can only be gleaned from the civil case summary contained in the clerk's transcript, which is not properly part of the record on appeal.   However, in the absence of any other documentation in the record on which to rely in determining what occurred below, we refer to the civil case summary sheet..  FN2. Much of the information regarding the proceedings below can only be gleaned from the civil case summary contained in the clerk's transcript, which is not properly part of the record on appeal.   However, in the absence of any other documentation in the record on which to rely in determining what occurred below, we refer to the civil case summary sheet.

FN3. In his second writ petition, which Greene urges us to consider in this appeal, Greene stated that he “doubt[ed] the judicial officer's ability to be impartial, and refuse[d] to participate in any court matters that is before his court.”.  FN3. In his second writ petition, which Greene urges us to consider in this appeal, Greene stated that he “doubt[ed] the judicial officer's ability to be impartial, and refuse[d] to participate in any court matters that is before his court.”

FN4. The file in B215254, the writ petition denied by this court on April 30, 2009, does not contain evidence or exhibits of any kind in support of Greene's request for relief..  FN4. The file in B215254, the writ petition denied by this court on April 30, 2009, does not contain evidence or exhibits of any kind in support of Greene's request for relief.

MANELLA, J. SUZUKAWA, J.