Maeshack v. Wiley CA1/1

Filed 4/9/13 Maeshack v. Wiley CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

VARNELL MAESHACK, Plaintiff and Appellant, v. A135854 JAMES C. WILEY et al., (Solano County Defendants and Respondents. Super. Ct. No. FCS037157)

Plaintiff Varnell Maeshack appeals from the order of the trial court granting defendant James C. Wiley‟s motion for summary judgment. As the record on appeal includes neither the complaint upon which summary judgment was sought, nor the defendant‟s motion for summary judgment, the order granting summary judgment will be affirmed. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Due to the lack of an adequate record on appeal, it is unnecessary to present an extensive overview of the background of this case. At all times relevant to this lawsuit, plaintiff was an inmate at California Medical Facility (CMF) in Vacaville. He is a paraplegic and was housed in wheelchair-accessible cells in the Enhanced Outpatient Program unit. Defendant is a field representative with the California Department of Corrections and Rehabilitation‟s Office of Audits and Court Compliance. He provides advice and guidance to CMF staff concerning compliance with disability regulations. He does not have the authority to make decisions or to give orders to CMF staff. In March 2010,

while defendant was interviewing inmates in plaintiff‟s unit regarding their housing, plaintiff called him over to his cell and told him that he had fallen and that he wanted to be housed in another cell. Defendant noticed plaintiff‟s cell did not have a transfer bar, and recommended to staff that he be moved to another cell with such a bar. He also recommended that plaintiff be given a smaller wheelchair to allow access to the sink in the new cell. Subsequently, he learned plaintiff had filed a housing grievance, complaining about not being able to reach the sink. However, the matter already had been resolved, as he was issued a smaller wheelchair so as to allow him to access the sink.1 On July 26, 2012, the trial court filed its order granting defendant‟s motion for summary judgment. The court found no triable issues of material fact existed as to plaintiff‟s causes of action for negligence, “intentional tort,” or deliberate indifference. DISCUSSION There is no doubt that Code of Civil Procedure section 473 grants the courts, including this court, broad discretion to relieve litigants from mistake or inadvertence, but that does not translate to granting relief which is not supported by the record presented on appeal. “ „A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.‟ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics in the original.) “ „A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.‟ [Citations.]” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; see also Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [where the defendants elected not to provide a reporter‟s transcript on appeal, the reviewing court 1 Plaintiff had complained to the authorities that he had been unable to attend to his hygiene or drink water while housed in the new cell. They agreed that he had a legitimate problem accessing all areas of his cell due to the size of his wheelchair. He was issued a smaller wheelchair in April 2010, thereby resolving his access issues.