Filed 10/12/22 Romero v. Castro 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FRANCISCO GARCIA ROMERO,

Plaintiff and Respondent,

v.

AARON CASTRO,

Defendant and Appellant.

F083108

(Super. Ct. No. VCU285265)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Bret D. 

Hillman, Judge.

Aaron Castro, in pro. per., for Defendant and Appellant.

Law Offices of Randolf Krbechek and Randolf Krbechek for Plaintff and 

Respondent.

-ooOoo-

* Before Franson, Acting P. J., Peña, J. and Meehan, J.
2

Defendant Aaron Castro (defendant or Castro) appeals from a default judgment

awarding plaintiffs $11,339.25 and enjoining him from interfering with plaintiffs’ 

easement. Castro’s appellate brief does not include any citations to the record and does 

not present reasoned arguments with citations to legal authority. As a result, Castro has 

failed to carry his burden as an appellant to affirmatively demonstrate the trial court 

erred. 

We therefore affirm the judgment.

MEMORANDUM OPINION1

Appellant’s Burden

Article VI, section 13 of the California Constitution states in relevant part: “No 

judgment shall be set aside ... in any cause, on the ground ... of the improper admission 

or rejection of evidence, or for any error as to any matter of pleading, or for any error as 

to any matter of procedure, unless, after an examination of the entire cause, including the 

evidence, the court shall be of the opinion that the error complained of has resulted in a 

miscarriage of justice.” Case law refers to this provision as creating “ ‘the constitutional 

doctrine of reversible error.’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) 

Several basic principles of appellate procedure have their foundation in the 

constitutional doctrine of reversible error. One principle relevant to this appeal states that 

appellate courts ordinarily are required to presume that a judgment of the trial court is 

correct. (Jameson, supra, 5 Cal.5th at pp. 608–609; Denham v. Superior Court (1970) 

2 Cal.3d 557, 564.) One consequence of this presumption is that appellants have the 

burden of affirmatively demonstrating that the trial court committed an error that justifies 

reversal of the judgment. (Jameson, at p. 609.) 

1 This matter is proper for disposition by a memorandum opinion in accordance 

with the California Standards of Judicial Administration, standard 8.1. (See People v. 

Garcia (2002) 97 Cal.App.4th 847, 850–855 [use of memorandum opinions]; Cal. Const., 

art. VI, § 14 [appellate decisions “shall be in writing with reasons stated”].)
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Because the burden of demonstrating reversible error is placed on the appellant, 

“ ‘[t]he reviewing court is not required to make an independent, unassisted study of the 

record in search of error or grounds to support the judgment. It is entitled to the 

assistance of counsel [or the self-represented appellant]. Accordingly, every brief should 

contain a legal argument with citation of authorities on the points made. If none is 

furnished on a particular point, the court may treat it as waived, and pass it without 

consideration.’ ” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.) Thus, an 

appellant’s failure to articulate intelligible legal arguments in the opening brief may be 

deemed an abandonment of the appeal justifying dismissal. (Berger v. Godden (1985) 

163 Cal.App.3d 1113, 1119.) Likewise, a failure to present arguments with adequate and 

comprehensible references to the record on appeal and citation to legal authority can 

result in forfeiture of any contention that could have been raised on appeal. (Cal. Rules 

of Court, rule 8.204(a)(1)(B) & (C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) 

The foregoing references to waiver, abandonment, and forfeiture are simply less direct 

ways of saying that the appellant’s briefing did not affirmatively demonstrate prejudicial 

error. (See Jameson, supra, 5 Cal.5th at p. 609.)

The Default Judgment

The register of action included in the appellate record shows that (1) plaintiffs’ 

complaint was filed on December 10, 2020; (2) proofs of service were filed in 

February 2021; (3) plaintiffs’ request for default was filed in April 2021; and (4) a 

request for court’s judgment and a supporting declaration were filed on June 11, 2021. 

None of these documents were included in the appellate record designated by Castro. 

On June 17, 2021, the trial court entered a judgment by default in favor of 

plaintiffs Francisco Garcia Romero and Maria Magdalena Miramontes Preciado and 

against defendants Aaron Castro and Valdrie Gonzales. The court used optional Judicial 

Council form JUD-100 and marked boxes indicating the court had considered plaintiffs’
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written declaration before entering the default judgment. The judgment directed 

defendants to pay damages in the amount of $10,800 and costs of $539.25. The judgment 

also prohibited defendants from (1) maintaining locked gates across an easement 

providing plaintiffs access to their parcels located at the intersection of Avenue 168 and 

Road 164 in Tulare County or (2) otherwise interfering with plaintiffs’ use of the 

easement.

The Appeal

On July 22, 2021, Castro, representing himself, filed a notice of appeal. A year 

later, Castro filed his appellant’s opening brief. In August 2022, plaintiffs filed a 

respondent’s brief asserting that Castro failed to (1) designate an adequate record on 

appeal, (2) identify any reversible error, or (3) cite any legal authority in support of the 

request for reversal. Castro did not file a reply brief. 

Castro’s Arguments

Castro contends that he was given implied consent to leave the entrance locked 

and, therefore, he did not do anything wrongful that justified an award of damages. 

Castro asserts that (1) the complaint alleged the locked entrance caused plaintiffs money 

damages due to loss of access, (2) the court did not find any wrong doing by defendants, 

and (3) the court “merely honored the complaint for defendants non appearance.” These 

assertions are not supported with any citations to the appellate record. Castro argues the 

judgment “is based on failure to self represent or obtain representation” and “the 

allegations of evidence were not properly notified, identified [¶] [i]n a timely manner.” 

Castro also contends the plaintiffs failed to meet their burden of proving his actions were 

wrongful or unlawful. Based on these arguments, Castro asks this court to reverse the 

trial court’s decision and vacate the award of damages.
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Analysis

First, we consider Castro’s argument that plaintiffs failed to carry their burden of 

proof. Applying the principles of law that govern the legal effect of a default, we 

conclude this argument does not show the trial court committed error. Under California 

law, a judgment by default is treated as conceding the material facts alleged by the 

plaintiff. In other words, a defendant’s failure to answer the complaint has the same 

effect as an express admission of the matters well pleaded in the complaint. (Kim v. 

Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281.) Under these principles, 

plaintiffs were not required to present evidence proving Castro’s actions were wrongful 

because he failed to file an answer to the complaint. Consequently, Castro’s argument 

about the failure of proof does not establish the trial court erred. Furthermore, because 

the complaint is not included in the record, we are unable to determine whether the basis 

for the award of damages set forth in the complaint meets the “well pleaded” test. 

Second, Castro argues that notification to him was not proper or timely. To the 

extent that he is claiming that service of the complaint was not proper, that argument 

must be rejected because the proofs of service were not included in the clerk’s transcript. 

“The filing of a proof of service creates a rebuttable presumption that the service was 

proper. However, the presumption arises only if the proof of service complies with the 

applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 

Cal.App.4th 789, 795; see Evid. Code, § 647.) Without a copy of the proofs of service, 

we are unable to determine if those documents complied with the applicable statutory 

requirements. Consequently, Castro has failed to present an adequate record to analyze 

whether service was proper. 

To the extent that Castro is claiming that service of the complaint was not timely, 

the register of actions shows the complaint was filed in December 2020 and the proofs of 

service were filed in February 2021. If service is not completed within three years, 
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dismissal of the lawsuit is mandatory. (Code Civ. Proc., §§ 583.210, 583.250.) If service 

is not completed within two years, the trial court has the discretion to dismiss the lawsuit. 

(Code Civ. Proc., §§ 583.410, 583.420, subd. (a)(1).) Here, proofs of service were filed 

less than three months after the complaint was filed. Thus, the statutory deadlines were 

met. Therefore, Castro has not demonstrated the service of process was untimely.

Third, Castro appears to contend that the default judgment was entered merely 

because defendants did not obtain representation and failed to represent themselves. This 

contention does not identify a trial court error because a default must be entered against a 

defendant who does not serve and file a responsive pleading. (See Code Civ. Proc., § 585 

[judgment on default]; Cal. Rules of Court, rule 3.110(g), (h).) The register of actions 

does not show defendants filed a responsive pleading. Therefore, based on the record 

presented, we must conclude that the default was properly entered against defendants on 

the ground that they failed to file a responsive pleading. 

In summary, the appellate record designated by Castro and his opening brief failed 

to affirmatively demonstrate the trial court erred when it entered the default judgment.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.