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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Ca stro has failed to carry his burden as an appellant to affirmatively demonstrat e the trial court
erred.
We therefore affirm the judgment.
MEMORANDUM OPINION 1 Appellant’s Burden Article VI, s ection 13 of the California Constitution states in relevant par t: “ 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 entir e cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice .” C ase law refer s to this provision as creating “ ‘the constitutional doctrine of reversible error.’ ” ( Jameson v. De sta (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 require d 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 demonstrat ing 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, s tandard 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”].)3

Because the burden of demonstrating reversible error is placed on the appellant,

“ ‘ [t] he re viewing 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

c ontain a legal argument with citatio n of a uthorities 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.) Thu s, a n 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, r ule 8.204(a)(1)(B) & (C); Nwosu v. Uba (2004) 122 Cal.A pp.4th 1229, 1246.)
The foregoing references to waiver, abandonment, and forfeiture are simply less direct
way s of saying that the appellant’s brief ing did not affirmatively demonstrat e 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 202 1 ; (3) plaintiffs’ request for default was filed in April 202 1 ; an d (4) a request for court’s judgment and a supporting declaration were filed on June 11, 20 21

. 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 plaint iffs ’4

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
pr oviding 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 lega l authority in support of the request for reversal. Castro did not file a reply brief.
Castro’s Argument

s Castro contends that he was given implied consent to leave the entrance locked and, therefore, he did not do anything wrongful that justified an aw ard 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 f

ailure to self represent or obtain representation” and “the allegations of evidence w e re 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 u nlawful. Based on these arguments, Castro asks this court to reverse the trial court’s decision and vacate the award of damages.5

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.
Westm o ore 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 no t 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 c laiming 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 ; s ee Evid. Code, § 647.) Without a copy of the proofs of servi ce,

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,6

dismissal of the lawsui t 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
le ss than three months after the complaint was filed. Thus, the statutory deadline s 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. Pro c., § 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 agai nst 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.
DISPO SITION The judgment is affirmed. Respondents shall recover their costs on appeal.