Pomogaibo v. Berman CA6

Filed 12/26/23 Pomogaibo v. Berman CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

KATERYNA POMOGAIBO, H050674 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. 21CV382347)

v.

EKATERINA BERMAN,

Defendant and Respondent.

MEMORANDUM OPINION1 Appellant Kateryna Pomogaibo voluntarily dismissed her action against respondent Ekaterina Berman.2 Shortly thereafter, the trial court granted Berman’s request to declare Pomogaibo a vexatious litigant and enter a prefiling order, which Berman filed before Pomogaibo dismissed the case. On appeal, Pomogaibo contends the trial court erred in granting the request. She claims the court issued the order after first taking the motion off calendar, and then reconsidering the issue based on Berman’s oral motion, made during improper ex parte communications with the court. She also alleges

1 We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 852-855.) 2 Berman did not file a respondent’s brief in this appeal. We decide the appeal on the record and the opening brief, as the parties waived oral argument. (Cal. Rules of Court, rule 8.220(a)(2).)

the court erred in adopting some but not all of the tentative rulings it issued prior to the subject hearing.3 We must affirm the judgment because Pomogaibo did not provide us with an adequate appellate record. “ ‘A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court’s ruling if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment. [Citation.]’ [Citations.]” (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 407-408.) Pomogaibo has the burden to affirmatively show error based on the record presented to this court. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson); Hewlett- Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 563.) Where an appellant fails to provide a sufficient record for review, we will affirm the judgment based on the presumption of correctness. (Jameson, at p. 609; Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039.) Pomogaibo elected to use a clerk’s transcript to provide the record on appeal. Such a transcript only consists of the documents designated by an appellant for the trial court clerk to include in the record, and only of documents that were filed or lodged in the trial court at the time the court issued the order being appealed. (See Cal. Rules of Court, rule 8.122; Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 723.) Here, Pomogaibo designated only her December 12, 2022 request for dismissal, the minute orders from hearings on December 13, 2022, and the trial court’s December 14, 2022