Filed 10/29/20 Clapham v. Barker CA2/1

Reposted with correct file date

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

SHARON CLAPHAM,

Plaintiff and Appellant,

v.

ANN BARKER,

Defendant and Respondent.

B300548

(Los Angeles County

Super. Ct. No. BC672526)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.

Sharon J. Clapham, in pro. per., for Plaintiff and Appellant.

FSG Lawyers and Richard W. Millar, Jr., for Defendant 

and Respondent.
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Plaintiff and appellant Sharon Clapham appeals from a 

summary judgment in favor of defendant and respondent Ann 

Barker. Clapham contends the trial court abused its discretion 

by not allowing witnesses, including Clapham, to testify at the 

hearing on Barker’s motion for summary judgment. Specifically, 

she contends the trial court erred by failing to continue the 

summary judgment hearing to allow Clapham “ ‘to obtain facts 

essential to justify opposition to the motion.’ ”

Clapham failed to designate the reporter’s transcript of 

the hearings on the summary judgment motion. She also failed 

to designate any of the relevant documents related to that 

motion, including the motion itself, the opposition, the reply, 

separate statement of undisputed material facts, or any of the 

declaration either in support of, or in opposition to, the motion.

We affirm on the basis that the record is inadequate to 

establish reversible error.

FACTS AND PROCEDURAL SUMMARY

Because the alleged facts giving rise to the action are not 

relevant to the disposition of this appeal, we discuss them only 

briefly. Clapham is the widow of Robert Clapham, an accountant 

and the former proprietor of Robert G. Clapham Accountancy 

Corporation (RGCAC). Following Robert Clapham’s death in 

2013, Clapham attempted to collect on debts owed to RGCAC, 

including unpaid billings issued to Barker. Clapham also had 

numerous discussions with one of RGCAC’s employees, Peter 

Sinambal, about a potential sale of the accountancy business to 

Sinambal. According to Clapham, Sinambal engaged in multiple 

acts of deceit and wrongdoing during the negotiations, and the 

parties never reached an agreement.
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Clapham’s operative first amended complaint alleged 

claims for financial elder abuse, fraud, breach of contract, 

and conversion against Sinambal, Barker, and several other 

defendants.

Barker moved for summary judgment against Clapham on 

May 2, 2019.1 According to Barker, the “gist” of her motion was 

that Clapham lacked standing, that no contract existed between 

them, and that Clapham failed to allege conduct by Barker that 

rose to the level of fraud. The trial court granted Barker’s motion 

in its entirety on August 12, 2019, as reflected in a minute order 

of that date. On September 4, 2019, Clapham filed a notice of 

appeal purportedly from “[j]udgment after an order granting 

a summary judgment motion.” Judgment, however, was not 

entered until five days later, on September 9, 2019.2

Barker twice moved to dismiss this appeal. The first 

motion, filed on November 15, 2019, asserted the notice of appeal 

was premature, that Clapham failed to designate a sufficient 

record, and that Clapham failed to comply with the rules of 

service delineated by California Rules of Court, rule 8.25. Barker 

1 Because the motion for summary judgment is not part of 

the record before us, we rely on Barker’s description of the bases 

for Barker’s motion.

2 In her respondent’s brief, Barker again argues this 

appeal should be dismissed because it was taken from the

August 12, 2019 order granting the motion for summary 

judgment, which is a non-appealable order. (Garcia v. Hejmadi

(1997) 58 Cal.App.4th 674, 680.) We have discretion to treat an 

appeal from an order granting summary judgment as an appeal 

filed after the entry of judgment and elect to do so here. (Taylor 

v. Trimble (2017) 13 Cal.App.5th 934, 939.)
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argued Clapham’s designation of record, which did not include 

the transcript of the summary judgment hearing or any of the 

documents related to the motion, failed to provide this court 

with a basis to review the summary judgment. Clapham did not 

oppose the motion to dismiss, nor did she take any action at that 

time to address the deficiencies in the record.

A second motion filed by Barker on June 29, 2020 again 

asserted that Clapham was seeking review of a non-appealable 

order. Alternately, Barker asserted that the record was 

inadequate, that Clapham’s opening brief failed to cite to the 

record in violation of California Rules of Court, rule 8.204(a), 

and that it attached an unrelated appellate decision in a 

different action. Once again, Clapham did not respond to this 

second motion to dismiss.

We summarily denied each motion.

Months later, after the completion of all briefing and 

within approximately 15 days of oral argument, Clapham filed 

two motions to augment the record, both of which were opposed 

by Barker. The first, filed on October 5, 2020, sought to add the 

transcript of the hearing on the motion for summary judgment, 

as well as transcripts of two unrelated hearings. In a second 

motion filed the next day, Clapham sought to augment the record

with a number of documents, many of which were unrelated 

to the motion for summary judgment. She did include her own 

opposition to the motion for summary judgment, but did not 

seek to add the remainder of the summary judgment documents, 

including the motion itself, the declarations, the separate 

statements, or the reply. Barker opposed both motions to 

augment, and we denied each of them.
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DISCUSSION

A judgment is presumed to be correct, and it is the 

appellant’s burden to show error. (In re Marriage of Arceneaux

(1990) 51 Cal.3d 1130, 1133.) Our review is limited to matters 

contained in the record and without the proper record, we 

conclusively presume that the evidence supports the judgment.

(Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003―1004, 

fn. 2.) An appellant therefore has the burden of providing a 

reviewing court with an adequate record to support any claimed 

prejudicial error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 

1295―1296 [“Because they failed to furnish an adequate 

record . . . defendants’ claim must be resolved against them.”].)3

Summary judgment addresses issues framed by the 

pleadings. (Conroy v. Regents of University of California (2009) 

45 Cal.4th 1244, 1250; Hutton v. Fidelity National Title Co.

(2013) 213 Cal.App.4th 486, 493.)

On appeal, Clapham designated only her complaint, 

her first amended complaint, the August 12, 2019 minute order 

granting Barker’s summary judgment, Clapham’s September 4, 

2019 notice of appeal, the September 9, 2019 judgment, and 

the notice designating the record on appeal. Clapham failed to 

3 The burden applies equally to parties who, like Clapham, 

elect to represent themselves on appeal. “Under the law, a 

party may choose to act as his or her own attorney. [Citations.]

‘[S]uch a party is to be treated like any other party and is entitled 

to the same, but no greater consideration than other litigants 

and attorneys. [Citation.]’ [Citation.] Thus, as is the case 

with attorneys, pro. per. litigants must follow correct rules 

of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 

1246-1247.)
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designate the remaining summary judgment documents, 

including, most critically, the separate statements of undisputed 

material facts. (Lewis v. County of Sacramento (2001) 93 

Cal.App.4th 107, 112 [“Facts not contained in the separate 

statements do not exist”].) While she did attempt to cure the

insufficiencies in the record, her motions to augment were 

inadequate as they sought to add only her opposition to Barker’s 

motion and the reporter’s transcript of the summary judgment 

hearing. The motions were also untimely, with no explanation or 

justifications for the delay. (Ct. App., Second Dist., Local Rules, 

rule 2(b), Augmentation of record [“Appellant should file requests 

for augmentation in one motion within 40 days of the filing of the 

record or the appointment of counsel. . . . Thereafter, motions to 

augment will not be granted except upon a showing of good cause 

for the delay.”].) In short, even if timely made and granted, the 

augmentation would still have left us with an incomplete record 

on which to review the summary judgment.

Because Clapham failed to present an adequate record, 

we must conclusively presume the judgment was correct. (In re

Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133; Uniroyal

Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d

285, 302.)
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DISPOSITION

The judgment is affirmed. Barker shall recover her costs 

on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P.J.

We concur:

CHANEY, J.

SINANIAN, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.