STEVE DeGROOT v. THE LEE INVESTMENT COMPANY (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

Appellant Steve DeGroot was employed by The Island Waterpark (Island).   After he was terminated, he sued Island, alleging (1) his termination violated public policy, and (2) he was defamed by Island's employees.   DeGroot named Island, its owners, and some of its employees as defendants.

The trial court granted Island's motion for summary adjudication of the wrongful termination cause of action.   DeGroot eventually settled the defamation cause of action.   Shortly thereafter, DeGroot filed a notice of appeal from the order granting the motion for summary adjudication.   We dismissed that appeal because that order was not appealable.   Our dismissal, however, was without prejudice to permit DeGroot to appeal if he obtained a judgment.

DeGroot subsequently filed another notice of appeal, which we now address.   As we shall explain, because the record in this case is deficient, we will affirm the proceedings in the trial court.

DISCUSSION

We will resolve this appeal through the application of two long-established rules.   First, it is appellant's obligation to provide an adequate record to allow this court to resolve the issues in the appeal.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140–1141.)  “ ‘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.’  [Citations.]”  (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)   Accordingly, the failure to provide an adequate record on an issue requires us to resolve the issue against the appellant.  (Rancho Santa Fe Assn. v. Dolan–King (2004) 115 Cal.App.4th 28, 46.)

Second, a “timely notice of appeal, as a general matter, is ‘essential to appellate jurisdiction.’  [Citation.]  It largely divests the superior court of jurisdiction and vests it in the Court of Appeal.  [Citation.]  An untimely notice of appeal is ‘wholly ineffectual:  The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.’   [Citation.]  The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the [party] to take an appeal expeditiously or not at all.”  (People v. Mendez (1999) 19 Cal.4th 1084, 1094.)

With these two principles in mind, we review the proceedings in this case.   On September 23, 2009, we granted Island's motion to dismiss the appeal in our case No. F056622 because DeGroot appealed from the nonappealable order.   Our order explained that such an order was not appealable and, because no judgment had been entered, the appeal was premature.   We granted the motion without prejudice to permit DeGroot to file a new notice of appeal should he obtain a judgment in the trial court.

The record in this case indicates that on September 15, 2010, DeGroot filed a notice of appeal.   This notice of appeal refers to the same order we held was not appealable in case No. F056622 (“Plaintiff appeals ․ from the Judgment by Court under Code of Civil Procedure § 437c and [California Rules of Court,] Rule 391 Order filed on February 14, 2008”).   The record does not contain a judgment.   The failure to include the judgment appealed from violates California Rules of Court, rule 8.122(b)(1)(B),¹ which is itself grounds for dismissal.  (Altman v. Poole (1957) 151 Cal.App.2d 589, 593.)

Island argues the appeal must be dismissed because there is no judgment in the record;  thus, DeGroot has not established his right to appeal.   We agree.   DeGroot, as the appellant, was required to provide this court with a record adequate to allow review of the issues in this case.   In the face of Island's argument, DeGroot did not file a reply brief, nor did he seek to augment the record to clear this patent defect.   The failure to do so makes review impossible.

We note there is a judgment contained in the correspondence between this court and DeGroot's counsel.   The correspondence, however, is not part of the record on appeal.   Moreover, even if we were to consider the correspondence, we would not address the issues because the appeal was untimely.

The judgment in the correspondence appears to have been filed on March 3, 2010.   There is no proof of service attached to this document, nor is there a notice of entry of judgment included in the correspondence.   The record indicates that DeGroot filed his notice of appeal on September 15, 2010, over six months after the judgment was entered.   Rule 8.104 provides that a notice of appeal must be filed before the earliest of (1) 60 days after the superior court clerk or a party serves a notice of entry of judgment or (2) 180 days after entry of judgment.  (Id., (a)(1)-(3).)   The notice of appeal contained in the record was not filed within 180 days of the judgment, and thus was untimely, under even the most generous possible reading of the record.

We also note that there is a second notice of appeal contained in the correspondence, but not in the record.   This notice of appeal indicates it was filed on July 8, 2010.   Once again, we emphasize that the correspondence is not part of the record on appeal, and it was DeGroot's obligation under rule 8.122(b)(1)(A) to include the notice of appeal in the clerk's transcript.

Even if we were to consider this document and the judgment in the correspondence, however, we could not reach the merits of the appeal.   The document does not contain a proof of service indicating it was served on any other party.   More importantly, the document was filed more than 60 days after the judgment was filed.   Therefore, from this record, including the correspondence, we cannot determine if this notice of appeal was filed within the time limits set forth in rule 8.104.

CONCLUSION

DeGroot has failed to provide this court with an adequate record to allow us to determine if this appeal was timely and also failed to augment the record with appropriate documents when faced with Island's argument pointing out the absence of a judgment or timely notice of appeal in the record.   Under these circumstances, we must resolve the issue against DeGroot.

DISPOSITION

The orders of the trial court, as well as any judgment that may exist, are affirmed.   Island is awarded its costs on appeal.

CORNELL, J.

WE CONCUR:

LEVY, Acting P.J.

GOMES, J.

FOOTNOTES

FN1. All further references to rules are to the California Rules of Court..  FN1. All further references to rules are to the California Rules of Court.