Filed 11/22/23 Cherie v. City of San Diego CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BERHANE CHERIE,

Plaintiff and Appellant,

v.

CITY OF SAN DIEGO,

Defendant and Respondent.

 D080951

 (Super. Ct. No. 37-2019-

 00056531-CU-WT-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Kenneth J. Medel, Judge. Affirmed.

Berhane Cherie, in pro. per., for Plaintiff and Appellant.

Mara W. Elliott, City Attorney, and Paul H. James, Deputy City 

Attorney, for Defendant and Respondent.

MEMORANDUM OPINION

In this wrongful termination action originally filed in 2019, selfrepresented Berhane Cherie appeals a judgment entered after the trial court 

granted City of San Diego’s (City) motion for summary judgment. On appeal, 

Cherie does not directly challenge this ruling. Instead, he seeks to litigate 

the underlying matter and introduce an additional theory of liability. We 
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resolve this case by memorandum opinion pursuant to California Standards 

of Judicial Administration, section 8.1. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The appellate record supplied by Cherie is insufficient to support a 

proper factual and procedural summary. For context, however, we provide 

the following summary based on the register of actions and the trial court’s 

minute order.

In October 2019, Cherie filed a wrongful termination complaint against 

City based on alleged disability discrimination, failure to prevent disability 

discrimination, failure to accommodate disability, failure to engage in the 

interactive disability accommodation process, and retaliation.

Roughly 20 months later, Cherie filed a First Amended Complaint. On 

August 20, 2021, City filed a Motion for Summary Judgment, or in the 

alternative, Summary Adjudication. City contended that none of Cherie’s 

causes of action had “merit” and there were “no triable issue[s] of material 

fact as to the matters sought to be adjudicated.” The court continued the 

trial date to March 25, 2022. City filed an Amended Motion for Summary 

Judgment, or in the alternative, Summary Adjudication on December 3, 

2021. On February 3, 2022, Cherie and City stipulated to continuing the 

summary judgment motion hearing to June 17, 2022. On February 4, 2022, 

Cherie filed a substitution of attorney and became a self-represented litigant. 

Cherie did not file an opposition to either of City’s summary judgment 

motions.

The trial court granted City’s summary judgment motion on June 17, 

2022. Because Cherie responded to neither the original motion for summary 

judgment nor the amended motion, the trial court noted City’s motion was 

unopposed and construed Cherie’s lack of opposition as a “concession on the 
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merits of the motion.” The trial court found that Cherie had “not established 

a triable issue of fact” and thus City was “entitled to summary judgment as a 

matter of law.”

DISCUSSION

On appeal, Cherie appears to assert the trial court erred by granting 

City’s summary judgment motion. He further asserts an additional theory of 

liability—that he suffered illegal discrimination based on his race or national 

origin while employed by City. As best we can discern, Cherie argues that 

there are triable issues of material fact and that the trial court erred by 

granting City’s summary judgment motion. He seems to contend that his 

failure to oppose City’s motion for summary judgment should be excused 

because he did not have “the right lawyer to represent [him] and COVID-19 

during that time.” Given his nonresponse to City’s motion, he believes the 

“judgement was made without information needed to make the right 

decision.” Cherie does not enumerate what that information was or how he 

planned to get the trial court that information if he was “allowed another 

chance to have the right judgement.”

I.

Sensitive to the challenges faced by self-represented litigants on 

appeal, we summarize some of the basic rules of the appellate process. We 

start with a presumption that the judgment or order being appealed is 

correct; the burden is on the appellant to affirmatively show error. (Denham 

v. Superior Court (1970) 2 Cal.3d 557, 564 [“ ‘All intendments and 

presumptions are indulged to support it on matters as to which the record is 

silent, and error must be affirmatively shown.’ ”].)

To make this showing, the appellant must present meaningful legal 

analysis supported by citations to facts in the record and authority to support 
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the claim of error. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must 

“[s]upport any reference to a matter in the record by a citation to the volume 

and page number of the record where the matter appears”]; id., (a)(1)(B) 

[briefs must state each “point under a separate heading or subheading . . . 

and support each point by argument and, if possible, by citation of 

authority”].) In addition, the appellant’s briefs must include “significant 

facts . . . in the record.” (Rule 8.204(a)(2)(C); CIT Group/Equipment 

Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn. 1 [“it 

is well established that a reviewing court may not give any consideration to 

alleged facts that are outside of the record on appeal”].) They must also 

include “ ‘ “all the material evidence on the point and not merely [his or her]

own evidence[.]” ’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246).

An appellant is bound by additional rules of appellate procedure 

designed to facilitate our review of claims of reversible error. For example, 

“ ‘[w]hen an appellant fails to raise a point, or asserts it but fails to support it 

with reasoned argument and citations to authority, we treat the point as 

waived.’ ” (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 

857, 862.)

Here, Cherie’s appellate briefing does not comply with those 

requirements. Both Cherie’s opening and reply briefs are largely recitations 

of his understanding of the facts; neither asserts a reasoned legal argument 

or citations to authority. Cherie’s opening brief also asserts a new theory of 

liability, namely that City unlawfully discriminated against him based on his 

race and national origin. He does not cite to any authority to support this 

new allegation or to confront the issue of raising it for the first time on 

appeal. Thus, Cherie waived the arguments raised in his opening and reply 

briefs.
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II.

Further, it is an appellant’s burden to provide an adequate record 

establishing error. (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.) 

Generally, an appellant must include in the record either a reporter’s 

transcript or a settled statement. (Foust v. San Jose Construction Co., Inc.

(2011) 198 Cal.App.4th 181, 187.) Gonzalez v. Rebollo (2014) 226 Cal.App.4th 

969, 977 [“Without a complete record, we are unable to determine whether 

substantial evidence supported the implied findings underlying the trial 

court’s order.”].) “ ‘Failure to provide an adequate record on an issue requires 

that the issue be resolved against [appellant].’ ” (Foust, at p. 187.) These 

rules of appellate procedure apply regardless of whether an appellant is 

represented by counsel or is self-represented. (Nwosu, supra, 

122 Cal.App.4th at p. 1247.)

“Summary judgment is appropriate only ‘where no triable issue of 

material fact exists and the moving party is entitled to judgment as a matter 

of law.’ ” (Regents of University of California v. Superior Court (2018) 

4 Cal.5th 607, 618.) We generally independently review the court’s grant of 

summary judgment and decide whether the facts warrant judgment for the 

moving party, determining their effect as a matter of law. (Gonzalez v. 

Mathis (2021) 12 Cal.5th 29, 39.) However, we review a trial court’s decision 

for abuse of discretion when it relies on the opposing party’s failure to comply 

with procedural requirements. (Parkview Villas Assn., Inc. v. State Farm 

Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208.)

“A defendant moving for summary judgment has the initial burden of 

presenting evidence that a cause of action lacks merit because the plaintiff 

cannot establish an element of the cause of action or there is a complete 

defense. [Citations.] If the defendant does so, the burden then shifts to the 
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plaintiff to produce admissible evidence demonstrating a triable issue of 

material fact as to the claim or defense. [Citations.] Theories that are not 

supported by evidence will not raise a triable issue.” (AToN Center, Inc. v. 

United Healthcare Insurance Company (2023) 93 Cal.App.5th 1214, 1229 

(AToN), citing Code Civ. Proc., § 437c, subd. (p)(2).) When a party fails to 

meet its opposition obligations for a motion for summary judgment, the trial 

court has discretion to either grant the motion or to continue the motion to 

allow the filing of a cured opposition. (Code Civ. Proc., § 437c.)

“ ‘ “ ‘[O]n review of a summary judgment, the appellant has the burden 

of showing error.’ ” ’ ” (AToN, supra, 93 Cal.App.5th at p. 1230.) An 

appellate court’s role is to determine whether any error occurred, and if so, 

whether that error was prejudicial to the appellant. (In re Marriage of Balcof

(2006) 141 Cal.App.4th 1509, 1531 [“ ‘[t]he Court of Appeal is not a second 

trier of fact’ ”].)

Here, Cherie did not submit responsive pleadings to the trial court. 

Before ruling, the trial court cited multiple times that City’s motion was 

unopposed. Given Cherie’s nonopposition, the trial court found City was 

entitled to “summary judgment as a matter of law” because “none of 

[Cherie’s] causes of action against the City ha[d] merit.”

The appellate record before us is insufficient to establish that the trial 

court erred in granting City’s motion for summary judgment. Specifically, 

the record consists of the complaint, first amended complaint, a copy of the 

minute order and notice of entry of judgment, and a summary from the 

register of actions. Notably, it does not include the motion for summary 

judgment or a transcript of the hearing. Any ambiguity in the record is 

resolved in favor of the judgment. (Jameson v. Desta (2018) 5 Cal.5th 594, 

608).) “By failing to provide an adequate record, [Cherie] cannot meet his 
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burden to show error and we must resolve any challenge . . . against him.” 

(Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 

348.) Thus, on this limited and insufficient record, we are unable to conduct 

a meaningful review of Cherie’s asserted error and must resolve this appeal 

in favor of the judgment.

DISPOSITION

The judgment is affirmed.

CASTILLO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

KELETY, J.