Filed 5/16/11 Mercado v.

Castaneda

C.AJ.f5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California RUles of Court, ruleS.1115(a), prohibits courtsancCparties from citing oirelYing~on opinions notcertified for publication pubnshed for purposes except asspecified by rule S.1115{b). This opinion fias not been certified for publication or ordered or ordered published, of rule 8.1115.

IN THE COURT OF APPEAL OF Th:.:ESTATE OF CALIFORNIA SECOND APPELLATE DISTRICT

DIVISION FIVE

SONIA 1v.fERCADO et al., Plaintiffs and Respondents,

B223549 (Los Angeles County Super. Ct. No. BC402296)

v.
JOSE CASTANEDA, Defendant and Appellant

APPEAL from an order of the Superior Court or Los Angeles County, Rita Miller, Judge. Affirmed.
Jose Castaneda, in pro. per.,
fOT

Defendant and Appellant.

Law Offices afR Samnel

PB.?

and R Samuel paz for Plaintiffs and Respondents.

EX~

1. INTRODUCTION

Defendant, Jose Castaneda, appeals from the March 24,2010

default judgment

entered against him. Because defendant has failed to provide an adequate record on . appeal, the judgment is affh--med.

ll. BACKGROUND

On November

17, 2008, plaintiffs Sonia Mercado, R Samuel paz and their law

offices tiled a verified complaint for injunctive relief and damages against defendant. .. The verified complaint asserted causes of action for libel per se, intentional infliction of

emotional distress, and intentional interference harassment

"With

prospective economic advantage. In

.

addition, plaintiffs requested a temporary restraining order and injunction prohibiting

Plaintiffs alleged that in 1996 they represented defendant's

mother in a case

arising from the death of another son who was mentally ill and committed suicide while in custody at the Los Angeles County jail. The case was settled for $400,000 in June 1997. After disbursement, Mercado went with defendant's mother and sister to the ballie

to identh"1' defendant's mother to the bank clerk and to confinn the validity of the check. Plaintiffs further alleged that in May 2005, eight years after the representatio14 Mercado was subp'oenaed to testify in a trial between defendant and another brother. Counsel questioned her regarding two checks dated in September and October 1996, which were made out to her and bore her apparent
sign.B.L"1rre

on the reverse side.

Mercado testified the signature was similar to hers but she did not recall those ~ particular ~ checks. Defendant allegedly became very angry that Mercado had testified in that trial and began to intimidate her by making harassing telephone calls to her office and sending her two letters stating, in part, "Once aga:in, I resent your appearance at trial." Defendant allegedly appeared unannounced at her office, harassed and stalked lier and made 2

menacing faces and gestures.

In addition, he also harassed and annoyed other people

such as her opposing counseL other attorneys and colleagues, and politicians by sending or copying them on letters, e-mails and faxes about Mercado, accllsing her of fraud, theft

and taking advantage of the elderly by conspiL-ingwith a bank to steal client funds.
Defendant also allegedly posted harassing and false statements on the Internet and through YouTube videos. The trial court docket shows plaintiffs moved for default judgment on January 8, 2009 and February 19, 2009. On April 15, 2009, defendant moved to set aside the default which the court granted on May 5,2009. responses to interrogatories, On May 18, 2009, plaintiffs moved to compel

requests for adillission and document production which the

court granted on June 11, 2009. Plaintiffs again moved to compel discovery on July 2, 2009. On August 11, 2009, the trial court granted plaintiffs' motion for terminati..ng
sanctions for defendant's failure to comply with the court's order. The trial court entered

an order of default against defendant on September 2, 2009 and entered judgment on March 24, 2010. Defendant timely filed.his appeal on April 1: 2010.

ill. DISCUSSION

This appeal is on a partial clerk: s transcript that omits pertinent documents filed in the trial court including plaintiffs' motions to compel discovery and for terminating answer. 1 On October 12,2010, this court

sanctions and the order stri1cing defendant's

ordered the parties in their briefs to "discuss the effect of defendant's failure to designate

1 We deny defendant's

various requests for judicial notice filed on February 2, 2011,

February 7,2011, March 2, 2011; M~ch 8,2011 and March 14,2011. Defendant's
motions fail to state "(A) [w)hytherl1atter noticed is relevan.tto the appeal; (B) [w]hether the matter to be noticed was presented to the trial court and, if so, whether judicial notice was taken by that COlli"""t; and (C) [wJhether the matter to be noticed relates to proceedings occunio.g after the order or judgment that is the subject of the appeal" as required by Rule 8.252 of the California Rilles ofCo~rt.
~

any of the relevant papers as part of the record.!! Defendant did not supplement the record. Defendant's failure to furnish an adequate record concerning an issue challenged

on appeal requires that tile issue be resolved against him. (Eureka Citizensfor

Responsible Governmentv. CityofEureka (2007) 147 Cal.AppAth 357,366; Hernandez v. California Hospital A!edical Center (2000) 78 Ca1.AppAth 498,502.) "A judgment order of the lower court is presv.med correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and eITor must be affirmatively shown."
OT

(Denham v. Superior Court (1970) 2 Cal.3d 557,564.)

Moreover, defendant's brief on appeal filed on January 5, 2011 contained no citations to the record. On January 5,2011, this court struck defendant's opening brief

because it failed to cite the record as required byrnle 8.204(a)(1)(C) of the California RuIes of Court. On January 14,2011, defendant filed another opening priefthat inadequately Amendment cites to the clerk's transcript and raises arguments on SLAPP law mid First issues that were not presented to the trial court. Indeed, none of the issues

raised by defendant address whether the trial court erred in striking defendant's answer
and entering a default judgment against lrim. .An appellant's brief must provide sufficient

citations to the record to enable the court to verify the facts asserted.' '''Briefs must provide argument and legal authority for the positions taken; they may not rely upon matters which are not p~ of the record on appeal." (pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003-1004

& fn. 2.)

Beside deficiencies in the clerk's transclipt, there is no reporter's transclipt of the June 11,2009 hefu-mg on plaintiffs' motion to compel discovery, the August 11,2009 hearing on plaintiffs' motion for terminating sanctions or of any other proceeding in this matter.

It is

defendant's

bill'den to provide an adequate record to assess error. (Ketchum

v. Moses (2001) 24 CalAtb.1122. 1140-1141; Aguilar v. Avis RentA Car System, Inc.
(1999) 21 Cal.4th 121. 132.} Defendant's failure to designate an adequate record on

appeal warrants affirmance of the judgment. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1141;AfariaP. v. Riles (1987) 43 Cal.3d 1281, 1295f

IV. DISPOSITION

Tne judgment is affumed.

The parties are to bear their own costs.

NOT TO BE PUBLISfIED

IN Trill

OFFICIAL REPORTS

KUlv1..A.R,

J. "'

We concur:

J.1U1STRONG, ActlJ1g

P.l

MOSK, J.

We deny plA1ntiffs' motion to dismiss defendant's appeal for failure to designate any of the '"relevant papers" as part of the record and for failure to present argument or authority on the issue appealed because the arguments raised by plaintif~ have already
been discussed. We also deny plaintiffs' request for an order finding defendant a vexatious litigant because plaintiffs pmvide insufficierrt evidence for this court to determ-iTIe whether defendant is a vexatious litigant under section 391 of the California

Code of Civil Procedure. Judge of the Los Angeles Superior Court., assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 5

ATTO~ev

OR PAA'l'YWITHOUT~TTO~I:Y

r"'''/llZ' rll"J JlinlSBl:

FOR COURT USE ONLY

vINC~NT VALLIN BENNETT, ESQ. -CGOa.DQ~ ,.,,;GDE1STEIN & K~I?ACK, 3580 WILSHIRE BOOLEVARD~-'SOITE LOS ANGELES, CA 9Q010

(213) lSSO "',

n
.2008 '

FILED
MAR

LOS ANGELES SUPERIOR COURT

ATlORNEYFOR(NllIlI8t II'III8ft nlmo of Cll&ll'I Bl\d lIoma Dl judlcllll dllutCl allG IIrllIlCh =uti.

PLAINTIFF

IS

Ir ant:

t1" 2fJ01.:
CjERK

300 EAST WALNUT AVENUE PASADENA, CA 91101

HAIFEN YE LUCERO (AKA "JEAN"
PLAINTIFF/PETlTIONER: DEFENDANT/RESPONDENT:

LASQo~

vv66., 5~M6~, oepuTY

A'~R1<~.

LUCERO) AND WILLIAM LUCERO GARFIELD MEDICA!. CENTER,

HAIPING
CASE NUIl4BER!

WANG. M.O_.

oo o II
Other
a. (1)

_ REQUEST FOR DISMISSAL

Damage, or Wrongful Oeath Other '

!1[] Personal

Injury. Property Motor Vehicle

Family Law . Eminent Domain

(spoc,1y)=

0
(2)

GC039743

A conformed copy will not be returned by the ,clerk unless a method of retum Is
1. TO THE CLERK: Please dismiss this action as follows;

rovided with the document. -

b. (1)
(3) (4) (5)

(6) Date:

(][J

0 0 0 0

With preiudice

Complaint

(2)

cross.cotnplaint filed by (name): Cross-cofuplainl-flled by (name): Entire action of all parties and all causes of action

CXJ Without
Petition

prejudice_

on (date): on (date):

Other (specify); GARFIELD

MEDICAL-

CENTER

VINCENT

..3/~8
VALLIN

BENNETT.

ESO.

(TYPEORPRINTNJ\MEOF

CXJArrORNE'(

PAR1YWlTHOUTAiTOR~~~"

(&laN.JTU1CE1 Attomey or party without attorrtSy for. HAl FEN 'IE LOCERO (AKA "JEAN" LUCERO) AND WILLIAM ,LOCERO

If clismlssal requested's of specified partiBs only ot specified causes ot sellon only, or of speclfJelJ cro6&-eomplslnt9 only, liD li121&Slid IdenllfY
lI\e parties, cauSllS ot action. or c/'O$UOmpJail1t&
10

be dismissed.

GO 0

PlaintiffJPetitioner . Cross - complainant

Defendant/Respondent

2. TO T~E CLER!<: Consent to the above dismissal is hereby given.-

Date:

(TYPE OR PRlI'IT NMlE OF -

ATTORNEY

PAftTYWITtlOUT ATTORNEYl

~------PlalntiffJPatitioner Cross - complainant

(SIGNATUREI

Attorney or party uP'hout attorney for:

II a croGli-complalnl..or ResponS6 (F3tn11i Law) sseklng 8l1Innal/ve raUer -Is 01\ /lIB, me lItta!l'lll)' for acss-co/11Plalnanl (respondent) must $fgll thlll .conoent consBnt il required by Code or CIllO ProcedLlre seclton 681 (II or <D.

'.W '0

0
.

DefendanURe;Po~dent.

(To be completed fiy cJerlcr- -.

3.

--

.-

~.

-,-. -.

4. 5.
6.

0 0

OOOlsmissalenteredon Dismissal not entered

Dismissal entered as requested on (date): (date): MAR 21 the following reasons (specify): . _ Z006 astoonly(name):$~ as requested for

#J~

. ~

~.e.l!/.#PJ'e

a. Attorney or party without attorney notified on (date): b. Attrlmey copyparty without attorney not notified. return eonforn"i9ac5jJy a or to conform means to Aling party~ailed to

Date:
!=aftl\ A40plD<! fer Mandeio/y u~o Judiel'll CounclllJI C:llilom/ll
';:1\1-110 IR"!".

JOHN A. CLARKE
CCClISof Civil PRl~.ISl.1"'1

P"no 1 011 S sa, eleaq.; C.d. Rulll$ or Court. NI" 3. 1:\90

J_1IIr

I.

:zDO'1J

.,

.'

1..

.,.

__ . 7

PROOF OF SERVICE

2 II STATE OF CALIFORNIA, COUNTY OF LOS ANGELES:

3 II

I am employed in the County of Los Angeles, State of California, I am over the age of eighteen years and not a party to the within action; my business address is 11755 Wilshire Boulevard, 15th Floor, Los Angeles, California 90025-1506.

. On March 19, 2008, I served the foregoing document described as REQUEST FOR . DISMISSAL AS TO GARFIELD MEDICAL CENTER on the interested parties in this action by
copy thereof as follows:

611 transmitting [ th~ original 7 Vincent Vallin ] Bennett, Esq. [.,I] a true Gordon, Edelstein & Krepack, et al 8 " 3580 Wilshire Boulevard, Suite 1800

9
10

II
II

Los Angeles, CA 90010 213-739-7999 Michael V. Lamb, Esq. John S. Cayley, Esq. Schmid & Voiles Los
I

Plaintiff's

11 /I

12 II

eles, CA 90071 St.,

8th

213 7 -8700
Floor

1311 '333 ~HOpe

Defendant, Haiping Wang, M.D.

15
16
17 24 20 23 19 25 27 21 26 28

14/1

[J

(BY FAX) I hereby certifY that this document was served by ~ delivery on all parties listed herein at their respective most recent fax numbers of record in this action on this date.
(BY FEDERAL EXPRESS) I am familil;lr with the collection and processing practices of said business, and in the ordinary course of business, Federal Express packages are enclosed in ,. sealed envelopes with a packing slip attached thereto, prepaid by our firm and deposited in the office of the building for Federal Express pickup, (BY PERSONAL SERVICE) I delivered such envelope(s) by hand to the offices of the
addressee(s) named herein.

[]

:: [] :: [v']

181/ [V} 2211

[1

(BY MAIL) I am familiar With the regular mail collection and processing practices of said business, and in the ordinary course of business, the mail is enclosed in sealed envelopes with postage thereon fully prepaid and deposited with the United States Postal Service that same day. I deposlted such envelope(s) in the mail at Los Angeles, California. (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made ..
Executed on March 19, 2008, at Los Angeles, California ~~~Cb Maricela Rodriguez

':'2-

REQUEST FOR DISMISSAL AS'TO GARFIELD~DlCAL

CENTER

'ATTORNEY

OR PAR1Y

WITHOUT

ATTORNEY

(Name

ana Address):

Vincent Vallin Bennett, Esq. GORDON, EDELSTEIN, KREPACK, ET AL

3580 WILSHIRE BOULEVARD.

213-7

39~l~OONENO.:

\'\AR "\ 4 1.00%

SUITE 1800
LOS ANGELES,
ATTORNEY FOR (Name):

CALIFORNIA

90010

PIa n t iff s
district and branch court, if any:

PASADENA LA.S;::

If

MAR 14

Z008

Insert name of court and name of judicial

Los Angeles Northeast

Superior

Court

- State of CA

PLAINTIFF/PETITIONER:

Haifen

Ye Lucero Medical

(a.k.a. Center;

"Jean" Haiping

Lucero),
Wana M.D.

et al. Garfield

DEFENDANT/RESPONDENT:

I X I pe~onallnjury,
!.

I Motor Vehicle

Property FOR DISMISSAL REQUEST D~~age, orWrongful.oeath I x ] Other

IGC039743
CASE

NUMBER:

i Eminent
I

!Family Law Domain

:x :Other (specify):Medical

Malpractice

- A conformed copy will not be returned by the clerk unless a method of return is provided with the document 1. TO THE CLERK: Please dismiss this action as follows: a. (1)

I x IWith prejudice
..

(2)

LJ

Without prejudice

b. (1) i

(3): (5):
Date:

x.:I Complaint

(4) :..

(2) ! -..J Petition .LCross-complaint filed by (name): : Cross-complaint filed by (name): ; Entire action of all parties and all causes of action
(specify):"

on (date):

on (date):

(6) l.x ! Other

only,

Plaintiffs'

complaint

against

defendant

HArPING WANG,M.D.
etc

March 7, 2008
Vallin
;-

Vincent

Bennett,

Esq.
GNATURE) :. : ~ PARTY WITHOUT ATTORNEY)

(TYPE OR PRINT NAME OF

x.~; A"ITORNEY

Attorney or party without attorney for: Plaint i

: :x:'1 L.:.:.. -'

"

If ~isrnissal requested j~ of specified pa~es action only, or of specified cross-camplamls the parties. causes of action. or cross-complaints

only of specified cau~es of only. so slate and IdentifY to be olSmissed.

Plaintiff/Petitioner

L.J Cross - complainant

..

L~

DefendanVRespondent

2. TO THE CLERK: Consent to the above ~ismissar is hereby given.Date:

{TYPE OR PRINT

NAME OF

~.J

ATTORNEY

I~~

(SIGNATURE) ATTORNEY}

PARTY WITHOUT

Attorney or party without attorney for:

** If a cross-cornp/ainl-or

Response (Family Law) seeking affirmative relief -is on file. the attorney for cross-complainanl (respondent) must sign this consent consent if required by Code of Civil Procedure section 581 (Q or (j).

.1~.~]

Plaintiff/Petitioner

[~JDefendant/Respondent
.

[_'.1 Cross - complainant

(To be..completed

by clerk)

4. ~ Dismissal entered on requested on (date): ,. as to only (name):..:?~ 3. i-'-., Dismissal as (date): M/\ D 1 A 5. _. I Dismissal not entered as reqtlMstel:ff6rlh~"Y011lSwing reaQf.!S (specify):
6. [:_:

/l 00 /Z---(21R ,A//:l-/?? h. . ~.
, ./

l I b. Attorney or party without attorney not notifil~CI.Filing party failed to provide a. Attorney or party without attorney notified ~~(date): (
r.= '] a copy to conform

r~

~C

means to retum conformed copy

Date:

MAR 1 4 2008 IOHN A. CLARKE

Page 1 of1
Code of Civil ProcedUl'll, 581 et seq.; Cal. Rules of Court. rule 3.1390

Form Adopted for Mandatory use Judicial Council of Celifomla

CN-110 [Rev. January 1,2007]

REQUEST FOR DIS