Steele v. Mutt McGrew CA4/3

Filed 10/28/21 Steele v. Mutt McGrew CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

DELBERT CHARLES STEELE, G058827 Plaintiff and Appellant, (Super. Ct. No. 30-2019-01048775) v. OPINION MUTT MCGREW, INC.,

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Charles Margines, Judge. Affirmed. Appellant’s request for judicial notice granted in part. Respondent’s request for judicial notice denied. Delbert Charles Steele, in pro. per., for Plaintiff and Appellant. Freeman Mathis & Gary, Stephen M. Caine and Marie E. Colmey for Defendant and Respondent. * * *

Delbert Charles Steele appeals from the trial court’s dismissal of his lawsuit for failure to prosecute it. Steele failed to appear at the case management conference (CMC) in October 2019. He likewise failed to appear at the court’s order to show cause re: sanctions/dismissal hearing (OSC) on December 3, 2019. Due to Steele’s failure to prosecute his case, the trial court ordered the action dismissed in an unsigned minute order. Steele filed his notice of appeal on February 4, 2020. Before he appealed, Steele failed to file a motion to vacate the judgment or otherwise present evidence to the trial court to support his claim that he was incarcerated between August 15, 2019 and December 8, 2019. He now asks this court to take judicial notice of his custodial status in 2019. Two principles govern this appeal. First, while Steele is self-represented, “[a] self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys.” (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574.) Second, appellate courts “generally cannot consider evidence not contained in the record before the trial court.” (Creed-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 522.) Thus, “[r]eviewing courts generally do not take judicial notice of evidence not presented to the trial court.” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) In light of these principles, we 1 deny in part Steele’s request for judicial notice, and find no basis to overturn the trial court’s entry of dismissal. We therefore affirm the judgment.